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'Scrabble - Career' found at https://flic.kr/p/nt5NFc by flazingo_photos (https://flickr.com/people/null) used under Creative Commons Attribution-ShareAlike License (http://creativecommons.org/licenses/by-sa/2.0/)
'Scrabble - Career' found at https://flic.kr/p/nt5NFc by flazingo_photos (https://flickr.com/people/null) used under Creative Commons Attribution-ShareAlike License (http://creativecommons.org/licenses/by-sa/2.0/)

[THIS POST IS ONE IN AN OCCASIONAL SERIES WITH OUR GO-TO EMPLOYMENT LAW COLLEAGUE KATIE KIERNAN MARBLE ADDRESSING SPECIFIC QUESTIONS WHERE IMMIGRATION AND EMPLOYMENT LAW OVERLAP]

EMPLOYEES

The implementation of DAPA will allow millions of currently undocumented residents of the United States to come forward, complete their paperwork, pay filing fees, and obtain temporary employment authorization documents (EAD) from USCIS. Many of these applicants will have been employed previously, sometimes under a name other than their own. DAPA offers the opportunity to start over in their own right, obtain permission to work legally in the United States, and get a Social Security number in one’s own name.

Addressing the use of false names and Social Security numbers is a delicate issue. While any government program which will allow the undocumented to become documented (even temporarily) recognizes that people may have had to use a different identity in order to work and pay taxes prior to getting their papers, individuals should still proceed with caution.

The Social Security Administration provides for changing names on a Social Security card due to “marriage, divorce, court order or any other reason”. A person must information(?)Social Security in order to get a corrected card, which cannot be done online. There is no charge for a Social Security card. In order to obtain a new/corrected Social Security card, an applicant must do the following:
  • Show the required documents, including proof of identity, and proof of current lawful noncitizen//immigration status
  • Fill out and print an Application for a Social Security Card; and,
  • Take or mail application and documents to your local Social Security office
It is important to consider carefully one’s claimed identity background when applying for DAPA, and when going through the process. While using made-up names and Social Security numbers may be subject to certain waivers, using a stolen identity could expose a person to criminal charges. Also, any prior claim to being a U.S. citizen could have serious, permanent, negative immigration consequences.

IF YOU HAVE A QUESTION ABOUT WHETHER AN IDENTITY YOU USED IN THE PAST MIGHT NEGATIVELY IMPACT YOUR ABILITY TO OBTAIN RELIEF UNDER DAPA OR ANY OTHER IMMIGRATION PROCESS, YOU SHOULD CONTACT A COMPETENT LAWYER OR LEGAL SERVICE PROVIDER FOR ADVICE BEFORE YOU FILE ANYTHING.

In terms of the Internal Revenue Service (IRS), all persons who work in the United States, whether legally or not, are subject to paying taxes. Similarly, all employers must comply with all tax withholding requirements and other laws, regardless of the of the immigration status of their employee. In addition, demonstrating that an applicant has paid taxes to the U.S. government may be a positive factor in the DAPA adjudication process. Compliance with all tax laws will also be a requirement for DAPA renewal, assuming the program continues after the initial three-year grant.


EMPLOYERS

  As federal agencies begin to implement DAPA, employers should take the time to understand how it is going to affect their workforce. Workers who may have previously provided inaccurate documentation in order to gain employment may now be seeking work authorization through DAPA, which puts employers in an awkward spot. Employers may learn that longtime, valued, and high performing workers got their job in the first place by lying about their identity and eligibility to work in the United States, leaving employers to wonder “now what?!?”

  How an employer responds to learning that a worker may be DAPA-eligible will depend in part on timing. If a worker approaches management to inform the company that he or she will be applying for a Social Security number and work permit through DAPA, but he or she has not yet received work authorization, then the employer does not have any options. The employer must terminate the worker’s employment because he or she is not eligible to work in the United States. The employer may tell the worker that he or she is welcome to apply for re-hire upon receiving the work permit, but an employer may not knowingly hire or retain an employee who does not have eligibility to work in the United States.

Currently, United States Citizenship and Immigration Services (USCIS) plans to begin accepting applications on May 19, 2015. However, the turnaround time on approval may leave applicants waiting for their work authorization until the end of 2015. DAPA-eligible workers may not understand that the application alone is insufficient to allow them to work in the United States. They may want to share their enthusiasm about submitting their application with their employer. But employers must be clear that application is not enough, and unless the worker has been granted authorization to work in the United States, that worker’s employment must be terminated immediately.

On the other hand, if a worker discloses DAPA eligibility after he or she has received DAPA work authorization, then the employer does have options. The employer can either update the worker’s documentation (specifically the Form I-9 and related documentation) and allow the worker to continue his or her employment or terminate the worker for providing falsified documentation at the time of hire. I suggest that the employer decide how it is going to handle this situation, and implement that decision in a consistent manner. If the employer picks and chooses who is retained and who is terminated based on subjective factors, then the employer is opening itself up to a discrimination claim based on differential treatment (i.e., based on race, national origin, etc.).

Employers may believe that it is too soon to start thinking about how they are going to handle these situations, but having a plan in place during the early stages of DAPA will only help employers to manage these awkward situations properly and avoid potential liability. Businesses who deal with issues as they arise are more likely to make missteps or inadvertently engage in differential treatment.

* * * * * * * * * *

Katie Kiernan Marble is an Employment Attorney who practices in New Hampshire and Massachusetts. Her office is located in Bedford, NH and she can be reached via email at katie@nhemploymentlaw.com or by phone at 603-769-3136.

Ron Abramson is the founder of Abramson IMMIGRATION+ SOLUTIONS, which represents individuals and businesses in immigration matters in the United States and around the world. Feel free to call him at +1.603.792.VISA (8472), or e-mail him at rabramson@immigsolutions.com.