USCIS Issues I-9 Guidance for Employers of DACA Recipients

A valid employment authorization document (EAD) issued under the Deferred Action for Childhood Arrivals (DACA) program is an acceptable List A document for Form I-9 employment verification purposes, USCIS has advised. If a current employee presents a new DACA EAD, the employer may need to amend the employee’s I-9 or complete a new one. 

The DACA program offers relief from deportation to unauthorized foreign nationals age 30 or younger who arrived in the United States before the age of 16 and meet other eligibility criteria. DACA beneficiaries are eligible for a USCIS employment authorization document that is annotated “C-33” in the “Category” section of the document. The document also bears an alphanumeric card number. 

New Hires Who Are DACA Beneficiaries 

If a new hire presents a DACA EAD as an I-9 document, the employer should accept it as long as it appears to be genuine and to relate to the employee who presents it. The document title, number and expiration date should be entered on Form I-9 in Section 2 under List A. 

Because the EAD is a List A document that establishes the presenter’s identity and employment authorization, the employer may not request additional documentation from the employee. Employers must remember that DACA beneficiaries – like all other legally authorized workers – are protected against I-9 document abuse. This means an employer may not subject a DACA beneficiary to higher scrutiny than any other employee, as doing so violates the anti-discrimination provisions of federal immigration law. 

When the DACA EAD expires, the employer must reverify the employee’s work eligibility in Section 3 of Form I-9. 

Current Employees Who Are DACA Beneficiaries 

In some cases, a current employee may present a DACA EAD to the employer, either during a Form I-9 reverification or to notify the employer of a change in the worker’s personal information. Depending upon the circumstances, the employer may need to amend the employee’s existing I-9 or complete a new I-9. As noted above, the employer may not request any additional documentation from the employee for I-9 purposes. 

New I-9 required. A new I-9 is required if there is a change in the employee’s name, date of birth, immigration status attestation or Social Security number (if the number was provided on the previous I-9). When completing the new I-9, the employer should enter the employee’s original hire date in Section 2 of the form, and attach the previously completed I-9 to the new form. 

Section 3 only required. If there is no change to the employee’s name, date of birth, attestation or Social Security number, the employer must complete Section 3 of Form I-9 to reverify the employee’s work eligibility. The document title, number and expiration date of the DACA EAD must be entered, and the employer must sign and date the section. 

If the employer previously completed Section 3 for employee or if the edition of the original Form I-9 is no longer valid, the employer must use a new I-9 form, completing only Section 3, and attach it to the previously completed I-9. (The current edition of Form I-9 is dated August 7, 2009; the February 2, 2009 edition is also acceptable). 

When to Use E-Verify for DACA Beneficiaries 

Employers who participate in E-Verify should use the system to check a DACA beneficiary’s work eligibility only if the individual is a new hire or a current employee for whom a new I-9 was completed because of a chance in the employee’s name, birth date, immigration status attestation or Social Security number. If the employer only completes Section 3 (whether on a previously completed I-9 or on a new I-9), E-Verify should not be used. 

What the DACA I-9 Guidance Means for Employers 

The new USCIS guidance answers some of the technical I-9 questions employers have raised since the DACA program was unveiled several months ago, and makes clear a DACA EAD is a valid I-9 document. But it does not provide guidance on two key issues for employers: What should the employer do if a current employee informs the employer that he or she is applying for DACA benefits – essentially admitting that he or she is not in the country legally and does not have work authorization? And what if an employee uses pay stubs or other employment records to demonstrate eligibility for DACA? In these circumstances, DACA poses some potential risks for employers. 

USCIS has stated that it will not used information obtained in the DACA application process to pursue employers who have employed DACA applicants or refer those employers to Immigration and Customs Enforcement, the agency responsible for I-9 compliance. However, ICE has not made a similar statement, and it is unclear how it will handle information pertaining to DACA applicants and their employers. 

An employer who completes Form I-9 correctly at the start of employment is shielded from liability if the employee later is discovered to be unauthorized or, relatedly, using a stolen or fraudulent identity. But if an employee advises an employer that he or she is seeking DACA benefits, the employer will acquire actual knowledge of the employee’s lack of work authorization. Under current law, permitting the employee to continue employment in this situation would make the employer liable for knowingly continuing to employ someone without authorization to work. If your organization learns of an employee’s plan to apply for DACA, consult your Fragomen professional as soon as possible. 

If you have any questions about this alert, please contact your designated Fragomen professional. You may also direct your question [email protected].

_{© 2015 Fragomen}