OSC Answers Questions for Employers on Hiring Deferred Action Employees

U.S. Department of Justice (“DOJ”) of Special Counsel for Immigration-Related Unfair Employment Practices (“OSC”) is a section within the DOJ’s Civil Rights Division and its primary responsibility is to enforce the anti-discrimination provision of the Immigration and Nationality Act (“INA”). This provision, 8 U.S.C. § 1324b, prohibits discriminatory practices by employers in hiring, firing, or recruiting an employee based on an individual’s national origin or citizenship status, and also prohibits unfair documentary practices to verify employment eligibility based on an individual’s national origin or citizenship status. On September 10, 2012, OSC provided general guidelines on a few questions posed in a letter submitted June 21, 2012 by the General Counsel of the National Small Business Association relating to the Deferred Action of Childhood Arrivals (“DACA”).

Question: Can individuals receiving deferred action be hired, and if so, what documents should they provide to show they are authorized to work?

Answer by OSC: Any individual authorized to work must show his/her eligibility work based on meeting the eligibility requirements set forth on the Form I-9. Under DACA, those who receive deferred action are eligible for an Employment Authorization Document (“EAD”) if they show “economic necessity.” An EAD satisfies the requirement for employment eligibility as set forth in the Form I-9. Therefore, individuals with an EAD may be hired.

Question: What should an employer do if an individual who receives deferred action fails the verification process for an E-verify employer?

Answer by OSC: All E-verify employers must use the E-verify program and the verification process for all new hires, regardless of whether the individual is receiving deferred action or not. Furthermore, all procedures following the E-verify result for each employee are to be followed, regardless of citizenship status or national origin. OSC is not aware of any changes in the E-verify verification process for DACA and all persons with an EAD should have their employment eligibility confirmed under the E-verify verification process. Finally, employers are generally prohibited from taking adverse action against any employee who receives a tentative nonconformation (“TNC”) until a final nonconfirmation (“FNC”) is issued in E-verify.

Question: “How long does a deferred action employment authorization last? What must an employer do when it expires? When are employers subject to civil or criminal penalties for retaining-or failing to retain- someone whose deferred action has expired?”

Answer by OSC: Individuals who receive deferred action are eligible to work with an EAD during the period of their deferred action. Employers will have to reverify employment authorization for employees that have a temporary period of work authorization. The reverification process is the same for all employees that have a temporary period of work authorization, whether they are beneficiaries of DACA or otherwise. The guidelines for this process are available on the Instructions for the Form I-9 and the anti-discrimination policies set forth in the Form I-9 include reverification.

Question: “When an employer subject to civil or criminal penalties for failing to hire someone who is eligible for or has received deferred action? Can an employer take into account the ‘temporary’ nature of the work authorization when deciding amongst candidates?”

Answer by OSC: Under the anti-discrimination provision of the INA, employers cannot discriminate against “protected individuals” in the hiring process based on the citizenship status of the “protected individual.” A “protected individual” includes citizens, nationals of the US, certain lawful permanent residents, refugees and asylees. 8 U.S.C. § 1324 b (a) (3). However, those receiving deferred action under DACA are not a “protected individual,” therefore, employers do no violate prohibited discriminatory practices when refusing to hire an individual based on his/her citizenship status if that person is not a “protected individual.”

However, individuals with employment authorization are still protected from prohibited discriminatory practices based on national origin and from document abuse under 8 U.S.C. § 1234b (a) (1) and 8 U.S.C. § 1234b (a) (6). Therefore, the “temporary nature” of a person’s employment authorization cannot be used as a pretext for discrimination based on national origin. Furthermore, INA 8 U.S.C. § 1234b (a) (5) protects beneficiaries of the DACA program from retaliation for exercising their rights against discrimination