Late last month, President Obama issued a number of Executive Orders on immigration america-immigration-logopolicy. One main point of the President’s action grants work permits to millions of immigrants who were ineligible for lawful status. If one of your employee’s qualifies for this program, called Deferred Action, you may have to update employee I-9s.

Deferred Action

The executive order allows qualifying immigrants to remain in the U.S. It also allows individuals to apply for a work permit, which can lead to a social security card. To qualify for the Deferred Action program, the applicant must meet the following criteria:

  • Present in the U.S. from January 1, 2010 through November 20, 2014;
  • The parent of a U.S. citizen or lawful permanent resident who was born before November 20, 2014.
  • No conviction of a felony, significant misdemeanor, or three or more other misdemeanors.

I-9 Updates

Many undocumented workers may be eligible for the Deferred Action program, which may lead to a work permit. If they do receive work permits, they can then go to the Social Security Administration and apply for social security numbers.

Armed with a new social security number, employees may request to update their I-9 form with their actual name and newly issued social security number.

Employers confronted with this situation should review both the new documentation and the old I-9 to determine whether a new I-9 must be completed or simply re-verify the I-9. If the employee’s name, address, date of birth, or social security number is now different than the information in section 1 of the previously completed I-9, the employer should complete a new I-9, write in the original hire date in section 2 and attached the new I-9 to the previously completed I-9. If you participate in E-Verify, you should verify the new I-9 information through E-Verify.

If the information in section 1 has not changed and the employee simply presents a new employment authorization document, the employer should complete section 3 and make a copy of the new employment authorization document. The employer should not conduct a new E-Verify check.

It will be several months before President Obama’s Executive Orders are scheduled to go into effect, and it’s far from clear whether they ever will be.

Take Away: If employees present new work authorization documentation, review your I-9 and make the changes or complete a new one as set forth above.

Authored by Craig MartinLamson, Dugan & Murray, LLP.