The HR Quandry over Deferred Deportations
A new White House effort to defer the deportation of undocumented workers -- which includes employer verification of employment to prove residency -- is causing the HR world some concern that organizations may be exposing themselves as federal-law violators.
By Larry Keller
When President Obama announced in June that he would suspend the deportations of illegal immigrants who arrived in the United States as children, he created a quandary for some employers. Those who have undocumented immigrants on their payrolls may be asked by these workers to vouch for the fact they are employed as one means of proving their residency in this country. Doing so, however, could potentially put employers in the position of tacitly admitting they knew of an employee's illegal status and in violation of federal law.
"It clearly is a dilemma for employers," says David Grunblatt, a Newark, N.J.-based partner at the law firm of Proskauer Rose, and head of the firm's immigration practice group. "This is one of those situations where the less you know, the better."
As many as 1.26 million unauthorized immigrants who came to the United States as children are potentially eligible right now for a two-year deportation deferral, according to the Migration Policy Institute, a Washington-based think tank. The top five states in potentially eligible immigrants are California, Texas, Florida, New York and Illinois. Nearly 740,000 of these immigrants are now working, the institute estimates.
The U.S. Citizenship and Immigration Services, a branch of the Homeland Security Department, began accepting applications for deferred deportation in August. About 85 percent of those potentially eligible for a deferment are from Mexico, Central and South America, and the Caribbean.
To be eligible for Deferred Action for Childhood Arrivals, an undocumented worker must meet several criteria. These include having entered the United States before the age of 16, and having continuously lived here since June 15, 2007. That latter proviso is what prompts some working immigrants to ask employers for a letter vouching for their work status.
Knowingly hiring undocumented immigrants can bring fines ranging from a few hundred to many thousands of dollars per worker, depending on factors such as prior incidents and the size of the employer, says Lynn Shotwell, executive director of the American Council on International Personnel. "They generally hold larger, more sophisticated employers to a higher standard than mom-and-pop operations," she says.
Verifying an unauthorized worker's job history doesn't automatically place an employer at risk. "If it's a neutral process that doesn't identify the purpose, especially if it's a process already in place, they won't have a problem," Grunblatt says.
Employers have no legal obligation to conduct job-applicant background checks that could unearth deception, Shotwell says. "If you do background checks, you need to do them for everybody," she says.
Workers ask employers for job verification for a number of other reasons, such as applying for a loan. If an employer has a policy of asking the purpose of the verification, it should do so across the board. If its policy is to not ask, follow that with everybody, Shotwell advises.
"Whatever the policies are, apply them consistently," she adds.
When there is an isolated case of an undocumented employee on the payroll, showing that an employer hired him while knowing of his illegal status isn't easy, Grunblatt says.
"The employer is not required to verify the legitimacy of documents employees submit on their [Form] I-9 if they look legitimate," says John Sarno, president and general counsel of the New Jersey Employers Association. "If they look valid on their face, there is no further inquiry."
"The basic rule is it's not expected that paperwork for a company is reviewed by a document expert," Grunblatt says. Indeed, employers have to walk a fine line between vetting applicants while not being so zealous as to be accused of discrimination, he adds. Form I-9 contains a prominent warning about discrimination.
It all may be a moot point, says Ira J. Kurzban, a Miami immigration expert who is past national president and former general counsel of the American Immigration Lawyers Association. "It seems to me to be quite unlikely that the government would use that information. It would undermine the whole purpose of the deportation deferment program," he says.
The one exception, Kurzban adds, is where "there is some pattern or practice where the employer is bringing in undocumented workers."
Maybe, but what happens after the two-year deferment period ends? What if President Obama is not re-elected? "We're not certain what will happen beyond the two years," Shotwell says. "Would a new administration use this information in a different way?" Some experts are advising employers to talk to legal counsel if in doubt, she says.
"You have to do a cost-benefit analysis," Grunblatt says. "If 30 percent of your workforce is [undocumented], I wouldn't recommend it." Other factors to consider: how critical to the business the workers are, and the morality of the issue, he adds.
Regardless of the legality, Sarno says DACA places employers in a tough position if they learn that a worker they hired years earlier submitted fraudulent documents.
"The employer has to make a moral decision on their lying," Sarno says. Should an employer who learns that an employee living and working in the country illegally falsified information to get a job be retained or terminated for his deception? Should the employee be treated differently than somebody who lies about his criminal background? His educational experience? What about work experience?
"They've evaluating the motivation of the liar," Sarno says. "These are very complex decisions. They're very personalized. The employer might know the employee's family, or the employee's relatives might be working there."
Sarno tells employers that unless they've knowingly hired undocumented workers, they aren't at risk of being sanctioned. But as to whether they should keep those workers if they learn they lied to get hired? "I tell them they're on their own."