President Obama plans to announce an executive order regarding immigration reform tonight and sign the order in Las Vegas on Friday. The order is expected to protect approximately 5 million unauthorized immigrants from the threat of deportation and to provide work permits. It is anticipated that 4 million will be the parents of U.S. citizen or lawful permanent resident children and the other 1 million will be foreign born students in the Science, Technology, Engineering or Mathematics (STEM) disciplines who will be allowed to extend their F-1 student status and will be issued work permits.
The President took similar steps in June 2012 when he issued an executive order granting Deferred Action for Childhood Arrivals (DACA) to approximately 500,000 foreign nationals in the United States without authorization. Many of those individuals were granted work authorization and issued an Employment Authorization Document (EAD) card, a formal document enabling them to work in the United States legally. At that time, the United States Citizenship and Immigration Services (USCIS) issued a Fact Sheet, Guidance for Employers that provides specific guidance on the treatment of EADs issued by USCIS to deferred action recipients and how employers should complete and maintain Form I-9s in these cases.
Form I-9 is used to verify the identity and employment authorization of individuals hired for employment in the United States. All U.S. employers must ensure proper completion of Form I-9 for each individual they hire for employment in the United States, including citizens and noncitizens. Both employees and employers (or authorized representatives of the employer) must complete Form I-9. On the form, an employee must attest to his or her employment authorization in Section 1 of Form I-9, and the employee must also present the employer with acceptable documents evidencing identity and employment authorization. The employer must examine the employment eligibility and identity document(s) and record the document information in Section 2 of Form I-9. Employers must retain Form I-9 for a designated period and make it available for inspection by authorized government officers.
The soon-to-be-issued executive order will grant deferred action (temporary relief from deportation pending immigration reform) to millions, and issue EAD cards enabling them to work in the United States. The EAD card will establish both identity and employment authorization and is an acceptable “List A” document for completion of Form I-9. To view acceptable documents for Form I-9 completion, please visit http://www.uscis.gov/i-9-central/acceptable-documents. There, you will see a variety of EAD cards for deferred action recipients. An employer cannot ask for any specific documentation when the employee completes Section 1 of the Form I-9. If a deferred action recipient presents an unexpired EAD card to complete Form I-9, an employer must accept it and request no other document. As with any other documents presented by an employee, the EAD must reasonably appear genuine and to relate to the deferred action recipient presenting it.
The employer must comply with Form I-9 instructions and enter the document title, issuing authority, EAD card number and expiration date in Section 2 under List A of the Form I-9. The employer cannot request proof of the deferred action if the EAD card appears genuine on its face. When EAD card’s validity period expires, the employer must reverify using Section 3 of Form I-9 to ensure the employee is still authorized to work.
As was the case with DACA recipients, the EAD cards will be issued for periods ranging from one to two years. As such, employers will need to regularly reverify employees who are deferred action recipients. It is recommended that employers develop a systematic, timely approach to reverification so these employees remain compliant with I-9 rules.
For additional information about deferred action, employers can visit the USCIS website at www.uscis.gov/childhoodarrivals. For additional information about Form I-9, visit the I-9 Central website at www.uscis.gov/i-9central.
For more information on the completion of the Form I-9, and to ensure your company is in compliance with required I-9 completion and maintenance practices, we refer you to our May 7, 2014 article, 10 Practical Compliance Tips for Growing Companies.
