• Department of Homeland Security Announces Work Authorization Program for Certain Illegal Immigrants
  • July 11, 2012
  • Law Firm: Jackson Lewis LLP - White Plains Office
  • Secretary of Homeland Security Janet Napolitano has announced that certain young people who were brought to the United States as children and who are not presently authorized to remain in the United States (“DREAMers”) will be considered for work authorization. There may be as many as one million individuals in the United States who are likely working right now, under a false identity, and who, as a result of the June 15th announcement, will become eligible to work in the United States under their true identity.

    Who are DREAMers?

    To qualify as a DREAMer, an individual must have:

    1. Entered the U.S. before age 16 and be less than 30 years old;

    2. Been present in the U.S. for five years as of June 15, 2012;

    3. Maintained continuous residence in the United States;

    4. Not been convicted of one serious crime or multiple minor crimes; and

    5. Graduated from high school, obtained a GED, enlisted in the military, or currently be enrolled in school.

    What is the Process for an Individual to Apply for Work Authorization?

    At present, no means exists for an individual to apply for work authorization under this program. A process is anticipated to be rolled out on or around August 15, 2012, by U.S. Citizenship and Immigration Services (“USCIS”). Until then, the time it will take for an eligible DREAMer to be granted work authorization is unknown. Nor is it known whether USCIS will grant DREAMers interim employment authorization while their applications are pending.

    What Employers Need to Do

    If a worker self-identifies or self-reports to an employer that he or she is an eligible DREAMer, the employer should make further inquiry, which may include:

    1. reviewing whether the employee must be placed on leave or terminated due to the unauthorized status or employment;

    2. assessing whether the self-identification and employment, considered together, result in a violation of the company’s policies or employee handbook (e.g., the misrepresentation, fraud, or ethical provisions), which may warrant termination;

    3. determining whether corporate I-9 records relating to the particular individual are in proper form and whether updates are needed; and

    4. exploring whether tax, benefit, and payroll documentation need to be corrected to ensure that taxes and benefits are attributed to the proper party.

    Employers should continue to maintain their I-9s in compliance with the law. Employers’ verification compliance responsibilities come from federal or local requirements intended to discourage the employment of individuals who are not legally authorized to work in the United States. Verification compliance is an issue for all companies, not just those that knowingly hire illegal workers. Companies unaware of the risks associated with employee verification requirements can find themselves sanctioned for non-compliance.

    Penalties for non-compliance with employee verification requirements range from significant fines to criminal sanctions for management. The greatest threat to a company, however, often is the business disruption that results from an investigation. In addition, for publicly traded companies, verification compliance (and the failure to address it) raises Sarbanes-Oxley issues. For all companies, compliance issues can bring negative publicity.

    How Can Jackson Lewis Help?

    Jackson Lewis offers the following verification compliance services:

    • Providing risk assessments and tools to ensure verification compliance for new hires.
    • Helping employers to comply with federal- or state-mandated E-Verify obligations. (E-Verify is a program that allows employers verify new hire information against government databases. Fourteen states currently require it in some fashion, and most federal contractors also must participate.)
    • Training clients on verification compliance.
    • Providing a call center to respond to questions as they arise.
    • Helping employers manage employee data, including identifying information they no longer need to keep (but which, if kept, can be the subject of a government investigation and resulting penalties).
    • Representing employers when their verification compliance is under government investigation, including remediation of any existing problems, negotiating lower penalties, and addressing possible criminal sanctions.