Some of our deferred action applicants have asked us whether it would be a good idea to deferred action get employment verification documents from their employers in order to establish the continuous presence requirement of the deferred action for childhood arrivals application. Recent practice advisory opinion issued by AILA Verification and Documentation Liaison Committee answers this question and presents some other problems that must be considered before deciding on the issue.
In their advisory notice, AILA Verification and Documentation Liaison Committee states that one thing to consider is that if the employer does not know of the employee’s lack of authorized status, the request for employment verification to be used in applying for DACA may
- a). Raise suspicions that the employee does not have work authorization; and
- b). Expose the employer to potential liability for knowingly employing an unauthorized worker if the employer continues to employ the worker.
Under current immigration law, employers who have actual or constructive knowledge of hiring or continuing to employ an employee without work authorization face civil and, at times, criminal liability. (Actual notice is a direct knowledge of the occurrence, while constructive notice is one imputed by law).Depending on the situation, employees who ask their employer to provide employment verification for a DACA application may raise credible indicators that they are undocumented. If such conduct puts the employer on constructive notice of the employee’s lack of authorization, the employer must take reasonable follow-up measures, or face civil and possibly criminal liability (if a pattern of employing unauthorized workers exists).
If the employer only becomes aware of an employee’s DACA application after the employee’s application is approved, there is no issue of actual or constructive knowledge of unauthorized employment, as the worker is no longer unauthorized. The USCIS and ICE have issued guidance on this point in the past, stating that the employer may continue to employ a worker who has work authorization but previously provided false documents or a different identity, so long as the employee presented documents that appeared to be reasonable valid and related to the individual.
Another issue to consider is whether providing employment verification to DACA applicants makes employers targets for future government enforcement activity. The DACA FAQs issued by the USCIS provide that the employers may, if they determine appropriate, provide individuals requesting deferred action with documentation which verifies their employment. However, the FAQs warn that if there is evidence of egregious violations of criminal statutes or widespread abuse, the information then would be shared with ICE for civil immigration enforcement purposes pursuant to the INA section 274A. Thus, the employers should be cautious and remember that the FAQs do not have the force of law or regulation and can be withdrawn at any time. Further, the employment verification documents might still be used in other criminal proceedings against the employer, as the FAQs are only the guidance for the USCIS.
In sum, the current guidance is insufficient to provide the employers and employees alike with a meaningful risk assessment concerning the potential use of the data in the files of the DACA applicants. Everyone should use their best judgment and understand the risk of potential consequences.