US Immigration Law: “Deferred Action” Brings Uncertainty

by | Small Business Consulting

Issues affecting small business include illegal immigration and undocumented workers – and here’s how those problems might impact YOUR company…

Deferred Action Immigration

Illegal immigration. Undocumented workers. Not many public policy issues can match the controversy generated by these two.

Whatever your feelings on the matters, and while a permanent resolution may be years away, in June 2012, the Obama administration introduced a short-term fix for some individuals with the Deferred Action for Childhood Arrivals program. The program grants certain non-citizens temporary permission to stay in the U.S. without risk of deportation.

Deferred action status is authorized for two years, and can potentially be renewed at the end of that period. Those who get deferred action may obtain authorization to hold employment in the U.S. – and that’s sometimes the tricky part. Read on.

Deferred Action Immigration Guidelines

Deferred action is administered by U.S. Citizenship and Immigration Services, which is governed by the Dept. of Homeland Security.

To qualify for deferred action, applicants must have been under the age of 31 on June 15, 2012, and be able to show they arrived in the U.S. before they turned 16. Applicants must be enrolled in school or have graduated from high school, and must pass a criminal background check. “Significant misdemeanors” will disqualify applicants.

Other guidelines can be found at the U.S. Citizenship and Immigration Services website, with these articles focusing on the Deferred Action for Childhood Arrivals program.

Deferred action immigration is determined on a case by case basis, so not all individuals meeting the listed criteria will be awarded deferred action status. There is also a $500 fee per application, which does not include any related attorney’s fees.

The Risks for Small Business

For your company, deferred action is a mixed bag of opportunity (expanded labor pool) and uncertainty (lots of gray areas regarding legal work status and proper documentation).

Tip: Successful deferred action applicants are given employment authorization document cards (EAD) to establish their work eligibility. The cards are similar to driver’s licenses and are legal documents, like passports or green cards.

In any case, you should always consult an experienced immigration lawyer if there is ever any doubt as to your legal responsibilities, but here are a few things to think about.

Illegal workers are still illegal. Deferred action does not grant immunity to undocumented workers in the U.S. In fact, raids on businesses in industries that tend to hire these workers (agriculture, hotels, restaurants, landscaping, etc.) have accelerated in recent years. The fines and penalties can be substantial. You still have a responsibility to verify the work eligibility of every employee.

But what if you didn’t know? As part of the deferred action application, individuals must provide evidence that they have lived for at least five years in the U.S. One way of doing that would be to ask an employer (you) to verify their employment history. But, by doing that, aren’t you acknowledging that you knowingly hired an illegal worker?

The government claims information on an application will not be shared with immigration or law enforcement, but it’s better to be safe than sorry. Contact an immigration attorney immediately if you are asked to help establish work history on any deferred action document.

Lawsuits Waiting to Happen? If you decide to fire an individual because he or she was dishonest about employment eligibility you might, ironically, find yourself on the wrong end of a lawsuit because you decided to do the right, or legal, thing. The terminated employee could claim discrimination.

The best course of action is to make sure you treat all employees the same, where it comes to checking on eligibility. Keep thorough files and prepare special notes, with the help of your lawyer, when documenting personnel decisions regarding applicants or employees with suspect status.

The Bottom Line with US Immigration Law Issues

Personnel matters are almost always complicated, and having to determine and deal with the potential eligibility of applicants and current employees only adds to the concerns.

Best advice: Carefully record every action regarding the eligibility status of each employee. Attach extra information, where needed. And be sure to get legal counsel if you sense trouble might be coming.

Find out more about US immigration laws here and check back often with MP Star Financial to gain insight into important issues affecting small business!


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