Immigration Reform: What It Means For California Employers
By Richard M. Green, Partner, Immigration Practice Group Chair, Carothers DiSante & Freudenberger LLP
President Barack Obama has promised unilateral action on immigration reform following the November 2014 elections. Although the precise details of the administration’s action are a closely guarded secret, the effect of unilateral executive immigration reform on California employers is foreseeable. Employers can expect to see more job applicants presenting temporary Employment Authorization Documents (EAD) as a means of establishing their identities and authorization to work in the United States.
In June of 2012, the Obama administration announced that it would grant Deferred Action for Childhood Arrivals to undocumented individuals who came to the United States as children, and met other certain criteria. With the announcement of this policy change, these individuals received a promise from the executive branch that they would not be deported and those eligible would receive a temporary EAD card and a Social Security Card (with disclaiming language as to employment eligibility). The following year, California Governor Jerry Brown signed a bill granting driver’s licenses or identification cards to undocumented immigrants with a distinction that it may only be used for driving, not for federal identification. The easiest way for the administration to effectuate unilateral immigration reform would be to expand the use of and eligibility for, Deferred Action and issue more temporary EAD cards. California employers should anticipate seeing more applicants presenting EAD cards, and be prepared to handle those that present this card as their basis for employability. Specifically, employers need to track the expiration date of their employees’ EAD cards, know the rules regarding the treatment of documents establishing employment eligibility, and be prepared for employees in their current labor force changing their names, citizenship status and/or Social Security numbers.
The Immigration and Nationality Act (INA) requires all employers to collect and examine documents that establish a potential employee’s authorization to work in the United States. Unlike most documents employees present to establish employment authorization, employers must track the expiration of EAD cards, and terminate an employee upon expiration of the card.
When asked to produce identity and employment authorization documents, most prospective employees present driver’s licenses, Social Security cards, US passports, and Alien Registration Cards (Green Cards). Employers should not concern themselves with the expiration date of these documents because an employee’s citizenship or permanent resident alien status does not expire with the document. However, an EAD card is different. It is only a temporary grant of employment authorization. A company that continues to employ a staff member after the expiration of the EAD card will be found to have employed an unauthorized foreign national. Employers should track EAD card expiration dates carefully and terminate employees whose EAD cards are not renewed upon expiration.
Employers that withdraw an offer of employment to individuals who present EAD cards as proof of employment authorization may encounter difficulty from the US Department of Justice and/or a job applicant. With rare exception (such as government employers or defense contractors), employers are not allowed to discriminate on the basis of citizenship, national origin, or the documents prospective employees present to establish employment eligibility. During the interview process, employers are permitted to ask job applicants only one question regarding employment authorization: “Are you authorized to work in the United States?” Only after an offer is made and within the first three days on the job, an employer and employee must complete an I-9 form from the Department of Homeland Security (DHS). This is when the employee is required to present documents that establish employment authorization. US Citizenship & Immigration Services publishes a list of acceptable documentation for use with an I-9 form. Employers are not allowed to dictate to prospective employees which documents they will accept – all documents on the list are acceptable. Employers who refuse to hire job applicants or withdraw an offer because of the documentation the employee provides are committing an immigrant-related unfair employment practice. The US Department of Justice’s Office of Special Counsel investigates and prosecutes immigration-related unfair employment practices. Additionally, a recent change to the California Labor Code permits an employee to press claims of federal immigration-related unfair employment practices in state court. This means an employer that refuses to hire an individual with an EAD card may end up defending their decision before a jury in state court.
Finally, the administration’s unilateral action may result in newly documented employees informing their current employers that they have changed their name, Social Security number, and/or citizenship status. Previously undocumented employees who presented false documents to their employer on their date of hire may attempt to “come clean” and present new documents to their employer. Employers in this situation have two options:
1. They may terminate the employee, or
2. They may amend the employee’s records to reflect the changes to their personal information
Recent changes in the California Labor Code forbids an employer from discriminating, retaliating, or taking any adverse action against an employee because the employee updates or attempts to update his or her personal information based on a lawful change of name, social security number, or federal employment authorization document. While it is unclear if a newly documented employee amending their personal information from an alias to their true name constitutes a lawful change of information, litigating the question would be costly.
An employer that amends employee records to reflect their newly acquired employment authorization status runs the risk of protracted litigation with US Immigration and Customs Enforcement (ICE), following an audit of their I-9 forms. While the INA has safe harbor provisions for employers who follow the law, ICE would likely take the position that the employer knowingly hired an unauthorized alien from the original date of hire to the date of the amendment. ICE then would assess fines – in the thousands of dollars – per employee. Employers should be prepared to defend their decision to amend their records to an administrative law judge and/or a judge in Federal District Court.
While we don’t know the details of the Obama Administration’s unilateral immigration reform, one thing that is predictable is this: California employers are likely to see more EAD cards. If an employer finds themselves in unchartered territory when it comes to immigration reform, the best way to approach the situation – and ensure legal compliance – is to speak with a knowledgeable business immigration attorney who can help guide you through any legislative changes.
About Richard M. Green
Richard M. Green is a partner at Carothers DiSante & Freudenberger LLP (CDF), a leading employment and labor law firm providing litigation defense and counseling to California employers. He is certified as a specialist in Immigration and Nationality Law by the California Bar’s Board of Legal Specialization. He currently serves as chair of CDF’s immigration practice group, guiding employers through complex immigration matters. Green leverages 15 years of experience to offer strategic counsel to employer immigration matters including work visas, employer-sponsored green cards and overseas consular matters. He represents employers being audited by the US Immigration and Customs Enforcement (ICE) on employment eligibility issues, the US Department of Labor for immigrant wage and hour audits and the US Department of Justice in immigration related unfair employment practices. He also helps foreign investors navigate the EB-5 Immigration Investor process.
To learn more about Green’s practice, visit www.CDFLaborLaw.com or contact him at email@example.com or (949) 622-1661.