What Do Employers Need to Know About Deferred Action?

Sarasota Immigration Attorney Victoria Jaensch Karins

I was recently asked this question by a reporter from “Biz941”.  Employers should definitely be aware of Deferred Action.  It creates a path for those who previously could not work legally to join the labor force.

To review, Deferred Action for Childhood Arrivals is a new government policy announced by President Obama on June 15th, 2012 and enacted on August 15th, 2012.  In essence the President announced that Immigration and Customs Enforcement (ICE) will no longer pursue children of illegal immigrants who arrived in the US while minors as priority targets for deportation if they are granted Deferred Action.  The executive order also created a path for people who meet the Deferred Action requirements to apply for an Employment Authorization Document (EAD) and a Social Security Number.

This is important because it means that immigrants who previously could not work due to their legal status can now do so legally.  This has the potential to widen the labor pool.  But there still exists the potential for fraud.  Some workers who are not legally employable may present a false Social Security number when applying for a job.  It is illegal to hire anyone who does not have a valid Social Security number.  Employers should be aware of this and understand that a person who has been granted Deferred Action will also have a valid Social Security number and is legally employable.

One way to test whether an individual is legally employable is by using E-Verify, the web-based government program that allows employers to verify the legal status of their prospective workers, in most cases immediately.  The idea is that E-Verify will make it easier for employers to obey the law and hire legal workers.

But, there is a small error rate.  Sometimes the information entered into E-Verify does not find a match in either the Department of Homeland Security’s or the Social Security Administration’s databases. That is why it is important for employers who use E-Verify to make sure they enter their prospective employees’ information correctly and that they notify their prospective employees immediately if E-Verify returns what’s called a Tentative Non-Confirmation (TNC).  Understand that it is possible that an individual recently granted Deferred Action and a valid EAD and SSN will still produce a Tentative Non-Confirmation with the E-Verify system.

At this point E-Verify is voluntary for most Florida businesses.  Florida state agencies and contractors are required to use the program.