September 10, 2012 IER Technical Assistance Letter on hiring and DACA

U.S. Department of Justice
Civil Rights Division
Office o/Special Counsel/or Immigration-Related
Un/air Employment Practices - NYA
950 Pennsylvania Ave, NW
----Washington,DG-£053 0----------
Main (202) 616-5594
Fax (202) 616-5509
SEP 1 0 2012
David R. Burton
General Counsel
National Small Business Association
1156 15th Street NW, Suite 1100
Washington, DC 20005-1711
Dear Mr. Burton:
Your letter of June 21, 2012, to the U.S. Department of Homeland Security ("DHS"),
Immigration and Customs Enforcement ("ICE") seeking clarification ona number of questions
relating to the Deferred Actionfor Childhood Arrivals ("DACA") program has been referred to
the U.S. Department of Justice, Office of Special Counsel for Immigration-Related Unfair
Employment Practices ("OSC") for partial response.
OSC, a section within the Department of Justice's Civil Rights Division, is responsible for
enforcing the anti-discrimination provision of the Immigration and Nationality Act ("INA"), 8
U.S.C. § 1324b, which prohibits discrimination in hiring, firing, or recruitment or referral for a
fee that is based an individual's national origin or citizenship status. The statute also prohibits
unfair documentary practices during the employment eligibility verification (Form 1-9 and E
Verify) process on the basis of citizenship status or national origin (document abuse), and
retaliation or intimidation. OSC cannot provide specific information regarding DACA as DHS is
responsible for its implementation. However, we can provide some general guidelines regarding
. employer compliance with the INA's anti-discrimination provision, which may answer some of
your questions.
In your first question, you ask whether "those receiving deferred action can be hired, and, if so,
what documents constitute proof they are authorized to work." Every individual in the United
States is required to establish his or her employment authorization by satisfying the requirements
of the Form 1-9. 8 U.S.C. § 1324a(b). Information on the requirements of the Form 1-9 can be
found in the Instructions that accompany the Form 1-9, on the U.S. Citizenship and Immigration
Services ("USCIS") 1-9 Central website (www.uscis.gov/I-9Central) and in the USCIS
Handbook for Employers, Instructions for Completing Form 1-9 (Form M-274, Rev. 06/01111).
One of the documents acceptable for purposes of the Form 1-9 is an Employment Authorization
Document (Card) that contains a photograph (Form 1-766). Under existing regulations, an
individual whose case has been deferred is eligible to receive employment authorization for the
period of deferred action, provided he or she can demonstrate "an economic necessity for
employment." www.uscis.gov/childhoodarrivals. 	OSC is not aware of any guidance at this time

indicating that the requirements of the Form 1-9 have been changed for beneficiaries of the
DACA program.
In your thh;dquestionyou-ask whai- an employer should "do when a person who has received
deferred action fails (as is likely) the E-Verify verification process." An employer that
participates in the E-Verify program should continue to use the program for all new hires,
regardless of citizenship status or national origin, and should follow appropriate procedures
applicable to the E- Verify result that is generated for each employee. In particular, OSC notes
that employers are generally prohibited from running existing employees through E- Verify and
from taking adverse action against an employee for receiving a tentative nonconfirmation
("TNC") if the employee decides to contest the TNC, unless and until that TNC becomes a final
nonconfirmation ("FNC") in E-Verify. 8U.S.C. § 1324a note, Sect. 403(a)(4)(B)(iii). OSC is
not aware of any guidance at this time indicating that existing E- Verify procedures have been
changed for beneficiaries of the DACA program. Nor is OSC aware that E-Verify would be
unable to confirm the employment eligibility of individuals who have received Employment
Authorization Documents, whether based on the DACA or other prograins.
In your fourth question you ask: "How long does a deferred action employment authorization
last? What must an employer do when it expires? When are employers subject to civil or
criminal penalties for retaining-or failing to retain-someone whose deferred action has
expired?" Public guidance from USCIS indicates that beneficiaries of the DACAprogram are
eligible for employment authorization during the period of deferred action. USCIS,
Consideration of Deferred Action for Childhood Arrivals Process,
www.uscis.gov/childhoodarrivals. Employers are required to reverify the employment
authorization of employees that have a temporary period of work authorization. Discussion of
this requirement and the procedures for proper reverification of employment authorization are set
forth in the Instructions to the Form 1-9, on the 1-9 Central website, and in the Handbook for
Employers referenced above. OSC is not aware of any guidance at this time that reverification
procedures are different for beneficiaries of the DACA program. The prohibition against
discrimination in the Form 1-9 process includes reverification, as well.
In your seventh question, you ask: "When are employers subj ect to civil or criminal penalties for
failing to hire someone who is eligible for or has received deferred action? Can an employer take
into account the 'temporary' nature of the work authorization when deciding among candidates?"
The anti-discrimination provision of the INA provides that employers may not discriminate in
the hiring process on the basis of an applicant's citizenship status in the case of a "protected
individual," defined to include citizens and nationals of the United States, certain lawful
permanent residents, refugees and asylees. 8 U.S.C. § 1324b(a)(3). Accordingly, employers do
not violate the anti-discrimination provision of the INA by refusing to hire an individual who
does'not fall within the definition of a "protected individual" on the basis of his or her citizenship
status. 8 U.S.C. § 1324b(a)(1)(B). Beneficiaries of the DACA program do not have a
citizenship status that falls within the definition of a "protected individual," and therefore are not
protected from citizenship status discrimination under the anti-discrimination provision. Please
note, however, that all individuals with employment authorization, including those falling
outside the definition of a "protected individual," are protected from national origin
discrimination under 8 U.S.C. § 1324b(a)(1) and from document abuse under 8 U.S.C. §
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1324b(a)(6). Consequently, employers may not use the "temporary nature"of an individual's
employment authorization as a pretext for discrimination on the basis of national origin.
Furthermore, employers should ensure that beneficiaries of the DACA program are not subjected
to unfair (fo-ciinlentarypractices in the employment eligibility verification and reverification
process.· Finally, beneficiaries of the DACA program are protected from retaliation for
exercising their rights under the anti-discrimination provision of the INA. 8 U.S.C.
§1324b(a)(5).
The remainder of your inquiry does not pertain to the anti-discrimination provision. We hope
this information is helpful. Please do not hesitate to contact the Department, or OSC directly at
osccrt@usdoj.gov, if we may be of assistance with this or any other matter.
Sincerely, 	L
~SeemaNanda
Deputy Special Counsel
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