USCIS Issues New Guidance on Work Authorization and I-9 Processing for Deferred Action Recipients

On June 15, 2012, the Department of Homeland Security announced the Deferred Action for Child Arrivals program (DACA). The program permits individuals who came to the U.S. as youth and who meet certain requirements to remain in the U.S. and to work, despite their undocumented status. The U.S. Citizenship and Immigration Service (USCIS) has now begun issuing Employment Authorization Documents (EADs) to participants in the DACA program. Therefore, on November 19, 2012, USCIS issued an important document providing guidance to employers on the treatment of such EADs and the processing of Forms I-9 in these cases. (EADs issued to DACA participants can be identified by the category shown on the card: "C-33".) The new USCIS document provides specific guidance regarding both new employees and existing employees, summarized below.

For Newly Hired Employees

EADs issued to DACA participants, as with all EADs, are acceptable from new employees to establish both identity and employment authorization for purposes of the Form I-9. Thus, if an employee provides an unexpired EAD that reasonably appears to be genuine and related to the DACA participant presenting it, the employer should accept the EAD as a "List A" document. Once accepted, the EAD can be used to process the employee's Form I-9 per usual. If the employer uses E-Verify, it should verify the information on the new Form I-9 through E-Verify.

For Existing Employees

When an existing employee provides a new EAD based on participation in DACA, the employer must review the employee's previously completed Form I-9 in order to determine what action is necessary:

• If the employer finds that any of the information from Section 1 of the employee's initial Form I-9 (i.e., the employee's name, date of birth, attestation, or SSN) appears differently on the new EAD, the employer must complete a new Form I-9, using the original hire date in Section 2 of the initial Form I-9, then attach the new Form I-9 to the previous Form I-9 for the file. If the employer uses E-Verify, it should verify the information on the new Form I-9 through E-Verify.

• If the employer finds that the information from Section 1 of the employee's initial Form I-9 is the same as is shown on the new EAD, the employer must record certain information regarding the new EAD (i.e., document title, number, and expiration date) and then sign and date Section 3 of the previously completed Form I-9 for the file. Employers should not conduct a new E-Verify check in these cases.

Importantly, in all cases, USCIS emphasizes that employers may not request additional proof of work authorization or status from DACA participants when processing Forms I-9. As USCIS points out, such conduct is considered discriminatory under the law and will expose the employer to potentially costly claims. However, if the employer has a rule against lying in the hiring process, existing employees may be terminated under appropriate circumstances if they are now presenting themselves as a different person.