As you may have heard by now, the Obama Administration decided to act on the issue of children brought to the United States who have gone on to have otherwise productive lives only to realize as they got older that they are unlawfully present in the United States.  The U.S. Congress wasn’t acting on the DREAM Act, so the Administration did.  The Administration announced that it would grant Deferred Action status to those brought to the United States prior to the age of 16, who are presently no older than 30, and currently in school, have graduated or obtained a GED, or are an honorably discharged veteran of the Coast Guard or Armed Forces.  Upon approval, these young people will receive a reprieve from deportation for two years and be eligible for work authorization.  That’s the gist of the program. 

Why does this matter to you as an employer?  Namely, if such an individual comes to you and says they need a letter to prove they have continuously resided in the United States since 2007 to present, this simple request opens up a can of worms.  Now you potentially know that the individual is not authorized to work and until they receive a work permit through the program, the general rule would be that they must be terminated.  Also, some are wondering out loud whether an employer who decides to write a letter on behalf of a Deferred Action applicant will expose themselves to an investigation by Immigration and Customs Enforcement (ICE) regarding their form I-9 practices and compliance.  Bottom line — if you receive an inquiry from an employee, or employees, regarding a letter of support for their application, speak with an immigration attorney knowledgeable with form I-9 issues before doing so. 

Additionally, for those eligible for Deferred Action, some states are being a bit mean-spirited and saying that even though the federal government is going to temporarily legalize their status, they are not going to issue them state benefits such as driver’s licenses or identification documents.  To date, those states are:

  • On August 15th, Arizona Governor Jan Brewer issued an Executive Order (2012-06) entitled, “Re-Affirming Intent of Arizona Law in Response to the Federal Government’s Deferred Action Program.”  Essentially Governor Brewer is stating that Arizona will not issue public benefits to those who receive work authorization and a work permit under the Deferred Action program, such as a driver’s license or identification card.   
  • On August 16th, Texas Governor Rick Perry sent a letter to Texas Attorney General Greg Abbott and Texas state agencies, “to ensure that all Texas agencies understand that Secretary Napolitano’s guidelines confer absolutely no legal status whatsoever to any alien who qualifies for the federal ‘deferred action’ designation.”  Perry concluded, “these guidelines do not change our obligations under federal and Texas law to determine a person’s eligibility for state and local public benefit. Federal law prohibits conferring such benefits to most unlawfully present aliens, absent a state law to the contrary.”
  • On August 17th, Nebraska Governor Dave Heineman announced that “President Obama’s deferred action program to issue employment authorization documents to illegal immigrants does not make them legal citizens.” Heineman concluded, “Nebraska will continue its practice of not issuing driver’s licenses, welfare benefits or other public benefits to illegal immigrants unless specifically authorized by Nebraska statute.”