Tuesday, September 18, 2012

Immigration Roundup: Are Employers Safe Under DACA?

by Laura D. Francis

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A month after the official launch of the Obama administration’s deferred action for childhood arrivals (DACA) program, employers have been wondering what might happen to them if they give their employees documentation verifying their employment. Will they be audited by Immigration and Customs Enforcement for employing undocumented workers? After all, providing this information to a DACA applicant is a signal that an employer now knows that it is employing someone not authorized to work in the United States—a violation of federal law.

But U.S. Citizenship and Immigration Services Sept. 14 may have allowed employers to breathe a sigh of relief. In an update to the agency’s frequently asked questions on DACA, USCIS said: “You may, as you determine appropriate, provide individuals requesting deferred action for childhood arrivals with documentation which verifies their employment. This information will not be shared with ICE for civil immigration enforcement purposes pursuant to [Immigration and Nationality Act] section 274A unless there is evidence of egregious violations of criminal statutes or widespread abuses.”

The statement is similar to assurances USCIS has been giving to DACA applicants that their information will not be shared with ICE for enforcement purposes, signaling that employers don’t need to fear prosecution if they reveal that they’ve been employing illegal immigrants—unless they’ve been seriously mistreating their workers.

Experts believe that employment documents are the most reliable way for DACA applicants to prove some of the eligibility criteria, and so removing a barrier to employers providing this information may result in a significant boost in the number of applications in the coming months.

At the same time, it does not look like employer hesitation is having a huge impact on the program. The same day USCIS updated its FAQs, it also released the first round of data on the program, showing that 82,361 individuals applied for DACA between Aug. 15 and Sept. 13. USCIS already has completed 29 of those applications, although the agency won’t say whether they were approved or denied.

In Other News:  

• Legislation (S. 3245) approving four immigration programs for three years passed Congress and headed to President Obama’s desk. The measure would extend authority for E-Verify, the EB-5 regional center program, the Conrad State 30 J-1 visa waiver program, and the special immigrant nonminister religious worker program. Obama is expected to sign the bill.

• A National Labor Relations Board regional director issued a complaint against two San Francisco Hyatt hotels asserting that they implemented E-Verify without bargaining with the hotel employees’ union. Enrollment in the voluntary program is a mandatory subject of bargaining and therefore cannot be implemented unilaterally, the complaint claimed.

• The 2012 Democratic Party platform, adopted Sept. 4, calls for a complete overhaul of the country's immigration system, simultaneously slamming Republicans for stalling congressional action and praising the Obama administration's efforts to make changes outside the legislative process. The platform contrasts the one adopted by the GOP a week earlier, which calls for piecemeal legislative solutions and an end to Obama's immigration programs.

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