Deferred Action EAD and I-9 Form Concerns for Employers

1362246_businessman_with_the_notebook_1.jpgSecretary of Homeland Security, Janet Napolitano, announced on June 15, 2012 of the new Deferred Action for Childhood Arrivals program, also called “DACA” or “Deferred Action.” This program gives certain undocumented foreign nationals permission to remain in the United States and also grants permission to work. Once granted DACA, foreign nationals should receive an Employment Authorization Document (EAD) card.

The EAD card is enough to establish authorization to work
All US employers must complete an I-9 Employment Eligibility Verification Form for each employee hired, including US citizens and foreign nationals. The employee must verify Section 3 of Form I-9 documentation to prove identity and authorization to work. The EAD is sufficient evidence to establish identity and authorization to work. Employers should accept the EAD card if it looks genuine, is unexpired, and looks like it does belong to the holder. The employer should not ask for any additional proof of US work authorization once the EAD card has been produced.

Employers must not discriminate based on citizenship or national origin
Employers should note that during the I-9 process it is unlawful to discriminate on the basis of US citizenship, immigration status, or national origin, according to the Immigration and Nationality Act.

When should an employer complete a new I-9 Form?

When a DACA employee provides updated information, the employer should determine whether a new I-9 Form is necessary, or if Section 3 should be completed. A new I-9 is needed when there is a change to the employee’s birthday, name, attestation, or social security number. Section 3 should be completed only if Section 1 information remains the same and a new EAD card has been presented.

E-Verify guidance
When a new I-9 form is completed, if the employer is one that participates in the E-Verify program, a new verification should be made of the I-9 Form information via E-Verify. If the employer only completed Section 3 of the prior I-9, then a new E-Verify check should not be conducted.