Monday, April 7, 2014
Employment Discrimination and DACA -- Employers Must Be Educated by Geoffrey A. Hoffman and Jill Y. Campbell
Employment Discrimination and DACA -- Employers Must Be Educated by Geoffrey A. Hoffman, Clinical Associate Professor and Univ. of Houston immigration clinic director and Jill Y. Campbell, Clinical Supervising Attorney, Univ. of Houston immigration clinic
The Deferred Action for Childhood Arrivals ("DACA") program should be clarified for employers to prevent employment discrimination, which is happening at an alarming rate to DACA recipients. The program rolled out in the summer of 2012 provides "lawful presence" and the right to authorized work to immigrants who qualify. The requirements are quite stringent. To qualify a person has to have entered the U.S. before the age of 16, have continuously resided in the U.S. since June 15, 2007, had to have been under age 31 as of June 15, 2012, entered without inspection or be currently out of status, and currently be in school or have graduated high school or have a GED. There are other requirements, for example, including not having been convicted of a felony, significant misdemeanor, or three or more other misdemeanors. The DACA program is discretionary. Even if one meets the eligibility requirements the federal agency granting the benefit (USCIS) can still deny the application if it determines the person, for example, poses a threat to public safety or national security.
The most important aspect of DACA, for many, is the right to work. In appropriate cases, immigrants can obtain an employment authorization document (EAD) where he or she can show "economic necessity." With an EAD, a DACA recipient can obtain a social security number, allowing the individual to work legally, pay taxes under the social security number, and build their credit. An EAD also may allow one to obtain a valid state driver's license which serves as a crucial identity document and allows one to drive without fear of being stopped without a license. The right to work does not require a "sponsor" and is renewable after 2 years. Moreover, DACA itself is renewable and there is every reason to expect that it will be renewed so long as the circumstances supporting its issuance in the first place do not change, for example, the person maintains a good record and pursues their education or goes to college or whatever the case may be.
Many employers do not understand DACA. Many believe - incorrectly - that a "sponsor" is needed. This assumption appears to be premised on a misunderstanding about DACA versus traditional employment-based immigration. In the traditional case, an employer would petition for an immigrant who would join or be transferred to a company or firm here in the U.S. However, no such sponsor is required under DACA, and DACA recipients can begin work immediately as long as their EADs are approved.
Moreover, employers have turned away eligible DACA hires due to a misunderstanding about the duration of the program. Believing, again incorrectly, that a person's authorization will run out for good in less than 2 years, some are reluctant to hire these immigrants. However, there is no question that DACA, with its authorization to work, is renewable. There is no reason to turn away otherwise eligible candidates, many of whom are college graduates, just because the benefit has to be renewed. It should be noted that DACA recipients throughout Houston present a wealth of talent and skills. Many of these DACA graduates received their degrees in engineering, accounting, and education. Now these graduates have work authorization and the ability to contribute to the Houston economy. Houston area employers should take advantage of these graduates who are now permitted to work and use their hard-earned degrees.
Employment discrimination is prohibited by federal and state law, and this includes DACA recipients. The Department of Justice's Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) is responsible for enforcing the antidiscrimination provisions in the Immigration and Nationality Act (8 U.S.C. § 1324b). Importantly, in February of this year, the OSC issued a detailed flyer to DACA recipients outlining their employment rights, available here.
DACA provides "lawful presence" to those who qualify and are granted the benefit. Although the federal government has been clear that no legal "status" is conferred it does in appropriate cases provide for lawful presence and the right to work. These individuals are subject to federal and state employment protections which must be followed by all employers.