- Employment Corner - Deferred Action Application Process Implemented by DHS
- November 23, 2012 | Author: Silas M. Ruiz-Steele
- Law Firm: Barley Snyder - York Office
August 15, 2012 marked the beginning of the United States Department of Homeland Security’s “deferred action” program. This program provides temporary relief from deportation, known as deferred action, to undocumented immigrants who were brought to the United States as children. The program, which operates as a form of prosecutorial discretion, offers young people who are in the United States with no legal immigration status the opportunity to avoid deportation and to gain employment for an initial period of two years. The program is now available to individuals who:
(1) were under the age of 31 as of June 15, 2012;
(2) came to the United States before reaching their 16th birthday;
(3) have continuously resided in the United States since June 15, 2007;
(4) were physically present in the United States on June 15, 2012;
(5) entered the United States without official inspection before June 15, 2012, or had no lawful immigration status as of June 15, 2012;
(6) are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
(7) have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, or do not otherwise pose a threat to national security or public safety.
What Employer’s Need to Know about Deferred Action for Childhood Arrivals (DACA)
Under the program guidelines, one of the primary challenges for DACA applicants is that they need to present evidence of their continuous residence and physical presence in the U.S. Eligible DACA applicant may turn to their employers for assistance in their search for documentation to establish these requirements. Such requests may put employers in a difficult situation. If the employer learns that, through a DACA-related request for information, that an employee lacks a valid work authorization, failure to act on that information could, under certain circumstances, expose the employer to potential liability for knowing employment of unauthorized workers. Similarly, an employer should take reasonable follow-up measures when it has constructive notice of an employee’s possible lack of work authorization. Constructive knowledge may include situations where an employer fails to complete or improperly completes the Employment Eligibility Verification Form, I-9. Civil and criminal penalties for hiring undocumented individuals can range from $250 up to $10,000 per individual for repeated violations. Our office can advise on the risks and potential consequences an employer must consider to avoid potential employer sanction penalties in face of DACA.