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What Employers Should Know About Deferred Action for Childhood Arrivals

1021401_77988809.jpgDeferred Action for Childhood Arrivals (DACA), a policy announced by the Obama administration in June 2012, offers a two-year reprieve from removal to people who entered the U.S. without documentation as children, who have remained here since, and who meet certain other requirements. Qualifying individuals may also obtain work authorization. The Department of Homeland Security (DHS) has begun considering requests for deferred action. Individuals who think they might qualify, as well as employers who think an employee might qualify, should take note of DHS procedures.

DACA’s Benefits and Limitations

President Obama announced DACA as a means of providing relief to individuals who might have benefited from the Development, Relief, and Education for Alien Minors (DREAM) Act, which failed to pass Congress in 2010. DACA offers relief from removal and the ability to work, but it cannot offer a path to legal residence or citizenship. Only legislation passed by Congress can create new avenues to permanent residence or citizenship. DACA is a form of prosecutorial discretion, in which DHS will not seek to remove qualifying individuals. That policy could change at any time.

DACA is available to individuals who meet seven criteria:

  1. Thirty years of age or younger on June 15, 2012;
  2. Arrived in the U.S. before reaching the age of sixteen;
  3. Entry into the U.S. without inspection before June 15, or expiration of legal immigration status on or before that date;
  4. Continuous residence in the United States since June 15, 2007 to the present;
  5. Physical presence in the U.S. on June 15 and on the date of requesting DACA;
  6. Current enrollment in school, high school diploma, GED, or honorable discharge from the U.S. Armed Forces or Coast Guard; and
  7. No convictions for disqualifying criminal offenses or other factors affecting public or national safety.

DHS has begun accepting applications for DACA. U.S. Citizenship and Immigration Services (USCIS) has promulgated a form, I-821D, for applicants seeking deferred action. Applicants may use Form I-765 for work authorization. As of November 15, 2012, USCIS has received nearly 300,000 DACA applications, and approved more than 53,000.

What Employers Should Know About DACA

DACA could impact employers who are seeking to hire employees, who are reviewing the work eligibility of job applicants, and who may have hired someone who lacks employment eligibility. This could expose employers to liability under federal immigration laws, should they employ an ineligible person. Employers may also risk liability under federal anti-discrimination laws, should they decline to employ someone because of DACA’s temporary nature.

Employers have a legal duty to verify the employment eligibility of every new hire. DACA has added a new means of demonstrating eligibility. If an employee obtains work authorization through DACA after beginning employment, it could raise questions of whether the employer knew the employee previously lacked authorization. It could also compel the employer to discipline the employee for, presumably, presenting false documents at the time of hiring. If a job applicant presents DACA work authorization, an employer might hesitate to hire the person because the current administration, or a new administration in 2017, could rescind DACA at any time. This could theoretically expose the employer to liability for discrimination.

The Rant

If you believe that the remedies offered by the DREAM Act were worthwhile, then DACA is at best a tiny bandage on a very large wound. It offers a reprieve, but no security, stability, or even reasonable hope for its beneficiaries. It offers them no further incentive, beyond the fact that the United States might be the only home they have ever known, to invest themselves in this country. It offers similarly little incentive to employers. At worst, DACA is a reminder, that, even if they have lived here most of their lives, a significant portion of the population still views them as outsiders.

More Blog Posts:

Obama Signs Immigration Executive Order, ImmigRantings, June 15, 2012
Prosecutorial Discretion – Amnesty By No Means, ImmigRantings, May 29, 2012
Obama on Prosecutorial Discretion, ImmigRantings, February 2, 2012
Photo credit: ‘Sunset Graduation’ by harrykeely on stock.xchng.