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USCIS Guide for Employers Regarding DACA

On June 15, 2012, the Department of Homeland Security announced that certain individuals who came to the US as children and met several key guidelines may request consideration of deferred action. Individuals whose cases are deferred may be authorized for work and issued an EAD, or Employment of Authorization Document.

All employers must complete and retain a Form I-9, Employment Eligibility Verification form for any employee they hire if the employee was hired after November 6, 1986. USCIS has now provided guidance for employers on how to treat EADs issued by USCIS for deferred action recipients when completing a Form I-9 for these individuals.

· An EAD issued by USCIS under DACA is an acceptable document for Form I-9.

· An EAD issued by USCIS establishes identity and employment authorization under “List A.”

· An employer should accept an unexpired EAD to complete Form I-9. Employer must not request additional proof from the employee about his deferred action case or authorization to work.

· Employer must fill out Form I-9, List A, Section 2 with

o Document title

o Expiration date

· New Form I-9 is required for existing employees if:

o Information in Form I-9, Section 1 does not change

o Employee presents a new EAD

o Employer verifies the documentation to be genuine and accurate

· When the EAD expires, employer must reverify using Form I-9, Section 3 if:

o Form I-9, Section 1 has changed on the previous form I-9, which includes

§ The employee’s name

§ Date of birth

§ Social Security Number (if one was provided on the previous Form I-9)

§ Complete a new I-9 Form

§ Write date of original hire in section 2

§ Attach new Form I-9 to the previous Form I-9

· If in the previous Form I-9, Section 3 was already completed or there is a new version of the Form I-9 and the previous one is no longer valid,

o Employer must complete Section 3 of new Form I-9 (using the latest version) and attach the previous form I-9

o If the employer participates in E-Verify, then employer should verify the new Form I-9 through E-Verify but not when only completing Section 3 as no new Form I-9 is needed

The Immigration and Nationality Act prohibits employers from discriminating against individuals eligible to work in the US based on their national origin, under certain circumstances, on citizenship or immigration status