A valuable and long-term employee has confidentially revealed to you that he or she is not who he or she claimed to be when originally hired. Since 2012, this scenario is occurring more frequently in part as a result of the Deferred Action for Childhood Arrivals or DACA program. On June 15, 2012, the Secretary of Homeland Security announced that certain individuals who entered the United States illegally as children may apply for deferred action allowing them remain in the US without fear of removal for a period of two years, subject to renewal. DACA does not provide lawful status, but it can provide temporary employment authorization.

When an employer learns that an employee’s identity is different from that previously used to complete the form I-9, the employer can retain the employee or terminate the employee for violating company policy, assuming the existence of applicable and equally applied policy. If the employer retains the employee, the employer should complete a new I-9 for the employee using the new credentials, but include the original date of hire in Section 2 of the new I-9 form. An employer should then attach the new I-9 to the old I-9 and include a brief written explanation for the change. The employer should also attach copies of the new credentials, assuming it does so consistently for all employees.

When preparing the new I-9 form, a DACA-authorized employee will complete Section I of the form, selecting that he or she is an alien authorized to work and will include the expiration date of the employment authorization card and provide his or her alien registration number (which appears on the card). Since the authorization will expire within two years, the employer will be required to re-verify the employee’s credentials to ensure continued employment authorization and should therefore calendar the expiration date at least 120 days prior to the expiration date, so that the employee has time to prepare and file a renewal application. Employers should note that the employee must provide the physical card and not a receipt notice from the USCIS to continue working.