Employers, Employees and DAPA: What do you do?

Nicole Kersey presents and interesting dilemma for people who employ immigrants: What do you do with immigrant employees who might be saved by the President’s proposal but are discovered to be here illegally?

If an employer discovers today that Bob presented fake documents when he was hired, and the employer confronts Bob, and Bob admits that his documents were fake and that he is not authorized to work, the employer must terminate Bob’s employment.  If Bob says he is not work-authorized today, but he is eligible for DAPA under the new executive order, the employer still must terminate Bob’s employment, even though – if the employer had waited a year to conduct the audit and confront Bob – Bob’s fate could have been much different.

So the question becomes whether employers would be wise – or kind – to wait until the new batch of DACA/DAPA beneficiaries have obtained employment authorization prior to conducting a voluntary audit.

If the employer waits a year or so, it can clean up its I-9s without the loss of as many valuable employees.  But if the employer waits a year or so and is, in the interim, inspected by ICE, the employer may face hefty fines and – in the most egregious situations – a prison sentence.

Nici writes a very interesting article and you’ll enjoy reading the whole thing.

She does present an interesting quagmire though. Immigrants and immigration advocates are in a sort of holding pattern: Potential applicants can’t sign up yet, and advocates like myself can only advise our clients on what we think might be necessary for the applications. We can’t help the majority of people who could sign up actually sign up for the programs.  But in the mean time, people like Bob and his employer are stuck trying to figure out what’s the right thing to do. It can be a hard question to answer, but talking with someone is the first step on figuring it out.

Naturally, my advice is to talk to an attorney about these things. Have a happy New Year. See you in 2015!