U.S. Citizenship and Immigration Services said Thursday that it’s working on employer guidance related to 2,600 three-year work permits mistakenly issued after a court blocked President Barack Obama’s major executive actions policies, in a move that could give companies some much needed compliance advice.
Roughly 2,600 Deferred Action for Childhood Arrivals recipients were sent three-year work permits after a Texas court blocked the expansion of DACA through Obama’s executive actions in February, causing a serious headache for USCIS.
After the government incurred the wrath of the judge overseeing the case because it wasn’t moving fast enough to fix the problem, USCIS Director Leon Rodriguez said in late July that 2,590 people who’d been sent three-year permits by mistake had either returned them, or that agency had “accounted” for the documents. Most people were issued replacement two-year permits.
But while this issue is largely resolved for the DACA recipients who had the misfortune of being issued an erroneous work permit by the government, there’s still plenty of confusion about what employers should do to ensure that they didn’t rely on a now-recalled permit when filling out an I-9 form.
“It’s really a rather glaring oversight of the government not to give guidance on this issue,” said Amy Peck, an attorney with Jackson Lewis PC, who first highlighted the matter in a blog post for her firm, co-written by her colleague Michael Neifach.
Following inquiries from Law360, a representative for USCIS said Thursday afternoon that the agency is currently crafting employer guidance on the permit issue.
“USCIS is working on employer and agency guidance regarding the changed EAD validity periods,” the agency said in an emailed statement. “In the meantime, potential employers who get a three-year Employment Authorization Document (EAD) as part of a job application or E-Verify request should follow the same procedure they would with any EAD.”
Worksite compliance is a serious issue for employers because of the potential for fines, or for federal contractors to lose their ability to bid on contracts, according to Peck.
And the current issue is even more complicated because the government gave three-year work permits, or EADs, to about 108,000 people before the court’s February injunction. USCIS clarified on Wednesday that these 108,000 three-year DACA work permits are valid and that people don’t need to return them.
The question becomes then, what should employers do if they’re worried that they relied on one of the mistakenly issued three-year DACA permits when they were filing out an employee’s I-9 form? According to Robert Loughran, a partner with Foster LLP, the answer is “absolutely nothing.”
“I would tell them to stick to their knitting [and] mind their own business,” Loughran said of employers. “Their business is not to be deputized immigration officers. That only ends badly.”
An employer’s duty is to review work authorization documents at the time of hire, or when they’re up for expiration, to make sure that they appear valid and relate to the worker at hand, Loughran said. If other information comes to their attention that puts them “on notice” [that] someone isn’t work authorized, that’s when a company should take action, he noted.
John Fay, who serves as general counsel to immigration compliance software company LawLogix, added that it’s probably wise to wait for government guidance on this issue before acting.
“If I was the adviser in a company, I would definitely err on the side of caution and wait for some more details and guidance,” said Fay, who noted that the government “tends to be very unpredictable in terms of the exact process that they want to follow.”
Ideally, employers would get guidance from both USCIS and the U.S. Department of Justice’s Office of Special Counsel, said Fay. The OSC investigates national origin and citizenship discrimination in the workplace, and asking someone to produce another work permit could give rise to an OSC claim.
Not asking for specific documents is therefore key, experts said. If an attorney thinks clients should take proactive steps — such as looking through recent I-9s — and an employer discovers an invalid three-year permit, the company should give the employee a list of USCIS’ acceptable documents, according to Sharon Mehlman of Mehlman Barnes LLP.
“An employer cannot request specific documents so they need to avoid saying ‘give me your new EAD,’ as that is requesting a specific document,” Mehlman said in an email. “It is the employee’s choice in the I-9 context, to decide what [documents] to provide.”
If a worker doesn’t have a new two-year permit or other work authorization document yet, she can’t keep working, Mehlman said. She also noted that because of the publicity on this issue, she believes U.S. Immigration and Customs Enforcement would say employers are “on notice” that some of the three-year permits are invalid.
“I would recommend that if they come across a three-year EAD, they contact immigration counsel to discuss and the attorney can [determine] if the EAD is subject to the injunction,” Mehlman said.
But it’s anyone’s guess at this point whether ICE will try to seek penalties from employers whose I-9 forms are inaccurate because of the government’s own error in issuing these permits. Marcine Seid of Seid Law Group — who also said she wouldn’t tell employers to proactively investigate this issue — pointed out that it was the government who “blew it” in the first place.
“I think it’d be embarrassing for the government to actually ding somebody on that after they were the ones that erroneously issued the card,” Seid said. “It’d be some kind of big political scandal.”