DACA and DAPA and Form I-9, Oh My! Does Prior Document Fraud Require Termination?

12 January 2015 Labor & Employment Law Perspectives Blog

President Obama’s recent decision to take executive action on immigration may cause confusion for some employers with regard to Form I-9 compliance.

The action includes two initiatives that potentially impact Form I-9 recordkeeping — enhancements to the Deferred Action for Childhood Arrivals (DACA) program and the creation of a similar program for parents of U.S. citizens and lawful permanent residents who have been in the country since January 1, 2010, to be known as the Deferred Action for Parental Accountability (DAPA).

DACA and DAPA allow individuals to apply for temporary relief from deportation if certain conditions are met. Both programs also provide eligible applicants with employment authorization.

Since DACA and DAPA are designed to benefit individuals who have been in the United States for a significant period of time, some beneficiaries may already be employed in the United States and may have presented fraudulent documents during the I-9 process.

What should an employer do when a DACA or DAPA beneficiary, or any other worker who transitions to a lawful work status from unlawful status, presents new documents to replace fraudulent documents that were originally presented during the I-9 process?

The answer may surprise you. While the U.S. Citizenship and Immigration Services’ I-9 Handbook reminds employers that workers who use fraudulent employment authorization documents are subject to fines and imprisonment, it also says that the Form I-9 rules do not require employers to terminate employees who were previously working under a false identity and who, subsequently, become work authorized, unless other laws, contractual obligations, or company policies require it.

Without an established company policy that requires termination for a false statement in the hiring process, employers should be cautious in taking action to terminate employees in this scenario.

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