An estimated 4.4 million undocumented individuals will benefit from President Obama’s expansion of the Deferred Action for Childhood Arrivals (DACA) Program by gaining work permits. Soon many Human Resources professionals will face long-term employees “coming out of the shadows” with possibly new identities and work authorization.
How should an employer respond when an employee presents new identity and new work authorization? What about The Immigration Reform and Control Act of 1986 (IRCA) and Form I-9 requirements? What about a company’s “honesty” policy?
The current version of the USCIS’ Handbook Employers (“Handbook”) already provides guidance on “new identity” situations: If the identity information relied on for a previous Form I-9 and/or E-Verify verification has materially changed, then the employer should re-run with the new identity information.
The Handbook also states that while there may be other legal, contractual, or company policy considerations, “where an employee has worked for you using a false identity but [comes forward with a new, true identity and] is currently work authorized, the I-9 rules do not require termination of employment.”
California employers must adhere to AB 263, California Labor Code §1024.6 which prohibits an employer from taking adverse action again an employee who updates or attempts to update his or her “personal information, unless the changes are directly related to the skill set, qualifications, or knowledge required for the job.”
Employer’s should view this as an opportunity to ensure a legal workforce without imposing punitive measures against the employee who now can benefit from immigration relief.