U.S. Citizenship and Immigration Services on May 19 posted on its website guidance for employers of employees who present a driver’s license issued by a state to persons who cannot submit satisfactory proof of legal presence in the United States. In sum, the guidance states that such a license:
- Must be accepted in the Form I-9 employment eligibility verification process as a List B document establishing identity if it otherwise meets the requirements of a List B document (i.e., it contains a photo of or information identifying the individual presenting it) and the employer determines it reasonably appears to be genuine and to relate to that individual.
- Does not, in and of itself, support a conclusion that the employer had actual or constructive knowledge (i.e., knew or should have known) that the employee presenting it is not employment authorized (if that is in fact the case).
- In addition, the guidance notes that:
- An employer accepting such a license as a List B identity document in the Form I-9 process must (as for all types of List B documents) also examine a List C document establishing the individual’s employment authorization.
- Under a regulation of the Department of Homeland Security, which houses USCIS, whether an employer is considered to have actual or constructive knowledge that an employee lacks employment authorization is determined on a case-by-case basis and depends upon all of the facts and variables specific to the individual case.
The last point above is made in the context of the federal ban against employing or continuing to employ an employee with knowledge that the employee is not eligible to be employed in the U.S. The DHS regulation noted above states that a “knowing hire” violation can include, in addition to actual knowledge of unlawful status, constructive knowledge that may be fairly inferred through notice of certain facts and circumstances, which would lead an employer through the exercise of reasonable care, to know about a certain condition. The omission from the guidance of any statement that an employer must do anything other than accept such a license as a List B identity document in the Form I-9 process indicates the federal government does not expect an employer to inquire into why an employee claiming employment eligibility has such a license—at least where the employer has no other reason to doubt the employee’s claim.
This conclusion should provide some sense of relief to employers in California who face legal liability for discriminating against a person because the person holds or presents an “AB 60 driver’s license,” so called because of the 2013 California Assembly bill that authorized the issuance of this type of driver’s license. A “clean up” bill enacted in 2014—AB 1660—declared that type of discrimination to be a violation of the Fair Employment and Housing Act.
The USCIS guidance, in the form of seven “frequently asked questions,” was posted in response to questions posed in a February 6, 2015, letter sent by California Farm Bureau Federation Associate Counsel Carl Borden to Deputy Secretary of Homeland Security Alejandro Mayorkas. That letter was submitted to DHS on behalf of California Farm Bureau Federation, California Fresh Fruit Association, Grower-Shipper Association of Central California, Grower-Shipper Association of Santa Barbara and San Luis Obispo Counties, Ventura County Agricultural Association and Western Growers.
The May 19 reply letter from USCIS Director León Rodriguez noted that the front of an AB 60 license bears the phrase “Federal Limits Apply,” and the back of the license states it “is not acceptable for official federal purposes.” The reply letter stated that Form I-9 use is not one of those official federal purposes; thus an AB 60 driver’s license may be used in the Form I-9 process. The reply letter continued by stating that Mr. Borden’s letter prompted USCIS, “in close cooperation with U.S. Immigration and Customs Enforcement,” to review, revise and augment its online guidance regarding the federal Real ID Act of 2005, which sets standards for state-issued driver’s licenses, and driver’s licenses used in the Form I-9 process.
Pitfalls and Perils for the Ag employers due to Executive Actions
This overview was prepared by Lynn Jacques, Esq. and Monte B. Lake, Esq., of SJ-Lake LLC, and ACIR co-chairman Craig Regelburgge. In is intended as general and preliminary guidance only. MCFB is a member of ACIR (Agriculture Coalition for Immigration Reform, based in Washington, D.C.)
Note: Legal challenges to this Executive Order have placed implementation in limbo, for the time being.
On November 20, 2014, President Obama announced a series of "Executive Actions" regarding immigration. There were several changes to Administration policy included in this series of memos from the Department of Homeland Security (DHS), but the most significant elements for employers involve deferred deportation for certain immigrants who entered or remained in the U.S. without authorization, and a shift in enforcement priorities for USCIS. The Actions address the impact of deportations of family members have on U.S. citizens or legal permanent residents, and the desire to target enforcement resources on border security rather than workplace raids and I-9 audits.
Under the Actions, an individual who entered or remained in the country without legal authority prior to January 1, 2010, who has resided continuously in the country since that date AND who is the parent of a U.S. citizen or legal permanent resident is eligible to apply for deferred deportation. If found to qualify after a background check and verification of family relationship, the individual will be given a document evidencing authority to remain and work in the U.S. for an initial period of three years.
Under the Actions, enforcement personnel are directed to use discretion in the apprehension of individuals beyond the border region and several previous enforcement directives are rescinded. The Actions indicate that enforcement will be targeted toward discovery and apprehension of terrorists, criminal aliens and individuals seeking unauthorized entry at the borders and ports of entry.
With the announcement of these Actions, the first inclination for many is to rush out and "do something" for your workers. Our initial advice to employers: restrain yourselves until the government provides guidance for employers with regard to its view of how these actions interface with the work authorization requirements of existing law. Over the next 180 days, DHS and the Department of Justice (DOJ) will be implementing these Actions through guidelines and memoranda. Ideally, the guidelines will include methods of protection for employer faced with the perils outlined below. We will be engaged in discussions with these agencies to highlight the need for that protection and will provide updates as additional information become available.
Technically, the Actions should have no visible impact on the current workplace. Under existing law, all employers must verify the authority of their workers to work in the U.S. or face penalties. This is accomplished by the I-9 Employment Verification process. Assuming the employer has dutifully complied with the I-9 requirements, there should be nothing to suggest that the Executive Action would apply to any current worker. Until further guidance is provided by the government and its legal ramifications evaluated, employers must be aware of the following pitfalls:
- Pitfall #1 - DO NOT ASK and do not reach out to your current workforce regarding their potential eligibility for deferred action status. You do not want to know that a current worker is unauthorized to work in the U.S., or the legal consequences of "actual knowledge" of hiring an unauthorized worker may befall you.
- Pitfall #2 - If an employee asks for copies of employment records, DO NOT ASSUME why they are asking, and do not seek clarification, or the peril of constructive knowledge of continuing to employ an unauthorized worker may befall you. Employment records are needed and may be requested for a variety or reasons-loans, school residency, leases, etc., not just to qualify for the deferred action under discussion. Bottom line-if asked for such records, "don't ask, don't tell" with respect to the underlying reason for the request.
- Pitfall #3 - Several months from now an employee comes forward to present an identity and work authorization card with information that does not match that provided at the time of hire. DO NOT SHRUG. Update the I-9. DO NOT THROW AWAY THE ORIGINAL I-9, or the peril of a non-compliant paperwork audit will befall you. Complete a new I-9 with the newly provided information and attach it to the old one. Ensure that your information on the worker for various reporting requirements, particularly tax reporting, is updated. Document the reason for the completion of the new I-9 Form and updated tax and social security information is because the employee informed you that he/she has obtained work authorization under the new Executive Order and provide such proof.
- Pitfall #4 - Perhaps you have been the subject of an I-9 audit and have been issued a notice of suspect documents related to some of your employees who have informed you that they have an application pending for deferred action, or they may qualify for deferred action when the application period opens, or they have been granted deferred action along with work authorization. DO NOT TERMINATE because of past unauthorized status or the peril of a discrimination lawsuit by aggressive worker advocate lawyers may befall you. Request an extension of time before making a determination decision to well after the beginning of the Deferred Action application process in writing to DHS, and cit the Action as justification.
There are undoubtedly other perilous scenarios that could impact an employer in the wake of announcement of these Actions. Many employers are also concerned that workers who may in fact lack proper work authorization may be taken advantage of by unscrupulous notarios, consultants, or attorneys and may receive bad advice. In some cases there may be credible organization that can provide individuals with legal and other guidance without the employer's involvement and outside the context of the workplace.
DHS and DOJ guidance may be forthcoming in the near future that addresses these concerns. In the meanwhile, exercise caution.