Visa Lawyer Blog

There has been much discussion about counseling individuals applying for Deferred Action for Childhood Arrivals (DACA), employers that offer jobs to undocumented workers may have specific issues to consider. What issues an employer must consider as they are asked to produce documents that will support their employee’s eligibility for DACA. As DACA applicants are, by definition, undocumented youth, employers needs to consider a number of important implications regarding the employer’s potential exposure under the employer sanctions laws. The AILA Verification and Documentation Liaison Committee issued a good practice alert on this topic as well.

A determination that an employer has constructive knowledge that an employee is not work authorized can result in employer liability in the event of an ICE raid or audit. Constructive knowledge is defined as knowledge that can be fairly inferred through the existence of particular facts and/or circumstances that would lead a person, through the exercise of reasonable care, to know about a certain condition. Unfortunately, constructive knowledge in this context can be imputed to an employer who fails to complete or improperly completes the Form I-9; acts with reckless and wanton disregard for the legal consequences of permitting individuals to introduce an unauthorized alien into its workforce or to act on its behalf; and fails to take reasonable steps after receiving information that the employee may be an alien who is not work authorized, such as the request by the employee for evidence needed to file the DACA application.

While an employer may be tempted to terminate the employment of an employee based upon the DACA issue, this action could be discriminatory and could result in lawsuits filed by the terminated employee or by the Equal Employment Opportunity Commission (EEOC), or both.

In a recent response to the deferred action executive order, California lawmakers approved a bill on Thursday to allow some young illegal immigrants who came to the United States as children to obtain driving licenses.

The bill, which passed the state Assembly by a 55-15 vote before being sent to the desk of Democratic Governor Jerry Brown, was introduced following the announcement of a federal program to relax deportation rules and grant some young immigrants temporary legal status in the United States.

“It is a victory for those who were brought here through no fault of their own, played by the rules, and are only asking to be included in and contribute to American society,” the bill’s sponsor, Assembly member Gilbert Cedillo, said in a statement

Immigration Officials are advising educators that school records will be among the key documents that young undocumented immigrants must submit in their requests for deferred action, the new immigration policy that allows individuals who arrived in the United States as children to seek relief from deportation and gain work permits.

Applicants have to demonstrate, among other criteria, that they are currently enrolled in school, have graduated from high school, or have obtained a GED. But school records will also help many potential beneficiaries prove another key qualification: continuous presence in the U.S. for the last five years. A high school transcript documenting four years of schooling would be “fantastic evidence in a single document.”
Educators wanted to know how “official” school records must be. The answer, said DHS officials, is that there is no fixed requirement for what form the school records must take; what matters is content. The key pieces of information on those documents are the student’s name, the time period that the document covers, and evidence of coursework that was completed. DHS officials said that the U.S. Citizenship and Immigration Services agency—which is handling the reviews of all deferred action requests—is prepared to accept any documents that schools provide to applicants.

One school official who was concerned about students meeting the requirements asked how applicants could prove they had been present in the U.S. during summer months, or school breaks, particularly in cases where they would be relying on education documents to demonstrate continuous presence for five years. DHS officials said there was no requirement that applicants must prove that any given day or summer must be accounted for and that the agency would bear in mind that schools do have breaks.

Another important question from educators was whether students whose deferred action requests are approved will be eligible to receive federal financial aid, such as Pell Grants, or to participate in federal work-study programs. The answer was that no such financial aid will be available to those who are granted deferred action.

Deferred action does only two things, DHS officials said: It removes the potential for deportation for at least two years, and opens up the possibility for obtaining work authorization. There are no other benefits.

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In a recent letter from the Department of Health and Human Services (HHS) concerning individuals with Deferred Action for Childhood Arrivals, the HHS issued a statement concerning whether these individuals qualify for Medicaid. The letter directed to State Health Official and the Medicaid Director was intended to inform them regarding the implications for Medicaid and the Children’s Health Insurance Program (CHIP) and the U.S. Department of Homeland Security’s (DHS) announcement on June 15, 2012, wherein they state that it will consider providing temporary relief from removal by exercising deferred action on a case-by-case basis with respect to certain individuals under age 31 as of June 15, 2012 who meet certain guidelines, including that they came to the United States as children and do not present a risk to national security or public safety. This process is referred to by DHS as Deferred Action for Childhood Arrivals (DACA). DHS has explained that the DACA process is designed to ensure that governmental resources for the removal of individuals are focused on high priority cases, including those involving a danger to national security or a risk to public safety, and not on low priority cases. DHS began accepting requests for consideration of deferred action on August 15, 2012.

Section 214 of the Children’s Health Insurance Program Reauthorization Act of 2009 (CHIPRA) gave states the option to provide Medicaid and CHIP eligibility to children and/or pregnant women who are “lawfully residing” in the United States and otherwise eligible for Medicaid or CHIP. The Center for Medicare and Medicaid services (CMS) provided guidance on the definition of “lawfully residing” in a July 1, 2010 State Health Official Letter. Because the reasons that DHS offered for adopting the DACA process do not pertain to eligibility for Medicaid or CHIP, HHS has determined that these benefits should not be extended as a result of DHS deferring action under DACA. For this reason, individuals with deferred action under the DACA process shall not be eligible for Medicaid and CHIP under the CHIPRA state option with respect to any of the categories (1)-(9) set forth in the July 1, 2010 letter.

While many Republicans have argued that the Deferred Action would grant these individuals with more public benefits, the letter from HHS clearly demonstrates that such individuals will not be eligible for Medicaid benefits. This means that U.S. taxpayers are not going to be paying into the Medicare/Medicaid system thinking that those services are going to individuals who are not here legally. While health care should always be provided to children who truly need it in order to stay healthy, this letter is in line with the position of the Obama Administration that this relief is for those low risk offenders who deserve a reprieve while Congress figures out what to do regarding all of these young individuals who were brought to the U.S. as children. In the meantime, it is important that those who are seeking Deferred Action understand that the benefits of this action are limited to what DHS has granted during this process at this time.

Several officers from the Immigration and Customs Enforcement (ICE) branch of the Department of Homeland Security (DHS) have filed an injunction in federal court against Secretary Nepolitano and DHS. The plaintiffs are ICE law enforcement officers who believe that by following the Directive issued regarding the Deferred Action that they violate federal law and will be harmed in their positions as ICE law enforcement officers. The officers filed for an injunction against the implementation of the Deferred Action because they believe it is unconstitutional.

The actions raised by the ICE officers in their complaint include: The Directive expressly violates federal statutes requiring the initiation of removals, it violates federal law by conferring a non-statutory form of benefit, deferred action, to more than 1.7 million aliens, rather than a form of relief or benefit that federal law permits on such a large scale, it violates federal law by conferring the legal benefit of employment authorization without any statutory basis and under the false pretense of “Prosecutorial Discretion”, it violates the Constitutional allocation of legislative power to Congress, it violates the Article II, Section 3, Constitutional obligation of the Executive to take care that the laws are faithfully executed, and that it violates the Administrative Procedure Act through conferral of a benefit without regulatory implementation.

While all of these actions raise questions of Constitutional authority and federal power, it will be interesting to see how the DHS responds and whether an injunction will be implemented. If so, it will be a major setback for the Obama administration in taking a stand and doing something where Congress has failed to act. Many DREAMers will now have to wait to see how this plays out and whether they may still gain some relief that was promised to them.