FEDERAL IMMIGRATION POLICY SHIFT MAY AFFECT RESTAURANT HIRING
The program is different from the proposed Dream Act that has been pending in Congress for many years. While the Dream Act provides permanent residency, the current deferred action program only provides temporary legal status and a work permit.
More details are promised to come from DHS regarding filing procedures, and it may take an additional two months to five months to issue work permits to the large pool of applicants. The size of the application pool will undoubtedly dwarf DHS’s ability to timely approve the applications. Restaurant operators should be aware of the program, though, as they plan to hire new workers in the coming months, as the new work permits begin circulating in the fall.
- be attending a U.S. high school, graduated from a U.S. high school, obtained a U.S. GED equivalent, or honorable discharge from the U.S. military
- have entered the United States before age 16
- have been continually physically present in the country for at least five years
- be younger than age 30.
With respect to the work permit, applicants must be at least age 15 to apply for a work permit. However, a 13-year-old or 14-year-old attending a U.S. high school who otherwise meets the criteria could get deferred action.
RELATED I-9 ISSUES
Assuming the employer elects to keep the employee and accommodate them, the following steps should be taken:
- Have the employee fill out a new I-9.
- Inspect the documents tendered by the Employee. Given the prior misrepresentation, employers may demand to see a List A document such as the work permit itself. If the documents appear valid, they can be accepted at face value. Employers who are using E-Verify cannot run an existing employee through E-Verify, unless they are a federal contractor doing so for all existing employees. And the online SSA SSN verification system is not meant to be used for I-9 purposes.
- Staple the new I-9 to the old one and attach a memo explaining what transpired.
- Other possible complications will have to be addressed, including possibly changing the name of the employee if he used a false name at the time of hire. And the HR and payroll information systems will need to be updated. Some employers will allow an employee to retain their seniority date under such circumstances and some will not.
Greg Berk is a partner at Carothers DiSante & Freudenberger and chairs their Immigration Practice Group. Find out more about the CRA Legal Center.