By virtue of President Obama’s executive action, there will be more potential work-authorized employees to hire. The executive action increased the number of Deferred Action for Childhood Arrivals beneficiaries, who are eligible for employment authorization if they file a petition and receive an Employment Authorization Document I-766. Employers need to get familiar with the Employment Authorization Document if it is presented by the employee when completing the Form I-9.
With the increased number of potential beneficiaries also comes the increased possibility that employers will face additional challenges with existing or former employees. Here are some Q&As that hopefully will be useful:
- What should an employer do if it learns that one of its existing employees has filed a petition for work authorization? The employer cannot under the law continue to employee the individual because the employer now has actual knowledge that the employee is not currently work authorized. The employee should be immediately terminated or the employer will face the risks associated with continuing to employee an unauthorized worker.
- What if an employer has terminated an employee in the past due to the fact that it was discovered (either through an ICE audit or internal audit) that the employee was not work authorized and now such employee seeks to be reemployed as a result of the employee’s new work authorization? The employer may evaluate that employee’s application for employment the same as any other employee who is currently work authorized.
- What should an employer do if an existing employee presents an Employment Authorization Document I-766, but the employee previously attested at the time of hire to being a U.S. citizen or Lawful Permanent Resident on his I-9 Form and presented false documents for the purpose of completing the I-9 form? This is a little tricky, because the employee is now work authorized but lied in the past. The employer may have a written honesty policy that prohibits an employee from submitting false information or documents to the employer. Consistent disciplinary or termination in response to violations of a honesty policy may allow the employer to address the past documentation fraud, but if the employer has not been consistent in its approach to other types of violations, then adverse action against the employee may draw the attention of the Office of Special Counsel, which investigates discrimination.