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U.S. Citizenship and Immigration Services Issues Guidance on SB 60 Drivers Licenses

4 Jun

U.S. Citizenship and Immigration Services on May 19, 2015 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 be based on either actual knowledge or constructive knowledge of unlawful status. Constructive knowledge is knowledge that may be fairly inferred through notice of certain facts and circumstances that would lead a person, 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.


What Does Presidents Exec Order on Undocumented Individuals Mean for Your Organization?

22 Nov

President Barack Obama’s announcement of executive action to expand the population of currently undocumented individuals who will be allowed to remain and work legally in the U.S. will take time and many details to fully understand.
In the President’s November 20, 2014, televised address to the nation, key initiatives of the President’s Immigration Accountability Executive Actions include:
• Expansion of Deferred Action for Childhood Arrivals (DACA): Currently, certain individuals who arrived in the United States as children are eligible for DACA protection and corresponding employment authorization. The announced executive action will expand the pool of individuals eligible for the DACA program and extend the period of DACA status and corresponding employment authorization from two years to three years.
• Creation of Deferred Action for Parents (DAP): This new program will allow parents of U.S. citizens and lawful permanent residents (of any age) who have been continuously present in the United States since January 1, 2010, and who pass background checks and pay taxes, to be eligible to apply for deferred action and corresponding employment authorization. DAP status and employment authorization will be for a three-year period.
Estimates are that up to five million currently undocumented individuals may be eligible for Deferred Action. While individuals granted Deferred Action will be eligible for work authorization, employers must be particularly cautious in addressing current employees who may come forward under these initiatives. Until employees actually present such official documentation, if they come forward to you, that will be evidence of their being unlawfully employed and you must terminate them under current Federal law or be liable for knowing employment of undocumented aliens.
The President also announced new efforts to increase the responsiveness of the employment-based legal immigration system to the needs of employers, some of which may affect your organization. These efforts include:
• Employment Authorization for H-1B Dependents: Currently, H-4 dependents of holders of H-1B non-immigration visas are precluded from employment. U.S. Citizenship and Immigration Services (USCIS) will finalize and promulgate a rule to provide work authorization to the spouses of certain H-1B visa holders who are on the path to lawful permanent resident status.
• Expansion of Optional Practical Training (OPT) for Foreign Students and Graduates from U.S. Universities: Currently, students enrolled in a science, technology, engineering, or math (STEM) academic degree program may gain practical training work authorization for 17 months in addition to the 12-month period typically available for post-graduate practical training employment. New regulations will expand and extend the use of OPT for foreign students, consistent with existing law.
• Greater Consistency in the L-1B Visa Program: For years, employers have sought guidance and clarity regarding the definition of “specialized knowledge” employees under the L-1B non-immigration program to better assess their prospective employees’ qualifications and prepare petitions accordingly. USCIS has stated that it will issue clear, consolidated guidance on the meaning of “specialized knowledge” as early as this year or the beginning of 2015.
• Increasing Worker Portability: USCIS will issue guidance with respect to the types of job changes that constitute “same or similar” jobs under current law. It also will remove unnecessary restrictions on natural career progression and general job mobility to provide relief to workers facing lengthy adjustment delays. Similarly, the adjustment process for individuals who are the beneficiaries of approved I-140 Immigrant Petition for Alien Worker will be amended by regulation so the sponsored worker is eligible to file for adjustment of status sooner.
While it will be months before many of the initiatives will be fully implemented, employers should begin preparing for these changes now, including inquiries from employees regarding the impact of this far-reaching executive action.
Thanks to Jackson Lewis p.c. for information for this article.