The new Deferred Action program for people who arrived in the United States as children – “DREAMers” – is now underway. The first few approvals were issued in late September 2012 and more are expected soon. This means employers may shortly see job applicants who present Employment Authorization Documents (EADs) obtained as DREAMers.
When considering DREAMers for open positions, employers should keep in mind that all the normal I-9 rules apply. You should complete an I-9 (or E-Verify process) for each new hire as usual. The EAD that DREAMers obtain after their applications for deferred action are approved is one of the documents specifically listed as acceptable to verify identity and work authorization on Form I-9. This means you are free to hire DREAMers.
Employers should keep in mind that the EADs issued to DREAMers are temporary, lasting for two years. Re-verification of employment authorization is required under existing law when temporary work authorization is set to expire. This is the same as for other temporary work authorization, i.e., the spouse of an E-2 investor who has obtained an EAD valid for one year at a time, or an applicant for adjustment of status with an EAD valid for one or two years.
What if your company has a particular need for a long-term employment relationship? National origin discrimination is prohibited in the I-9 process and even the appearance of treating job applicants differently based on their country of origin should be avoided. However, employers may still lawfully decline to hire a DREAMer with valid temporary work authorization as long as the employer is motivated to avoid a temporary hire rather than by bias against applicants of a particular national origin.
The Small Business Administration addressed questions about hiring DREAMers to the Department of Justice (DOJ) Office of Special Counsel for Immigration-Related Unfair Employment Practices. For more information about this topic, see DOJ Special Counsel Seema Nanda’s letter on the DOJ website at http://www.justice.gov/crt/about/osc/pdf/publications/TAletters/FY2012/161.PDF.