That's the question employers across the country are now facing. More than 500,000 immigrant workers—who entered the U.S. legally under a humanitarian parole program—were recently told to leave their jobs and “self-deport” after the Department of Homeland Security abruptly ended the program.
The headlines are emotional. The legal issues are complex.
Generally, if an employee has a properly completed I-9 form, the employer is not liable for hiring someone who later turns out to be unauthorized. As long as the documents provided at the time of hire reasonably appear genuine and relate to the employee, you're in the clear. That's exactly how the system is meant to work.
This situation, however, is different. In this case, the government is notifying employers that certain employees' immigration status has changed—and that they are no longer authorized to remain in the U.S. Still, even under these circumstances, telling an employee to "self-deport" carries legal risk.
Ordering someone to self-deport, or assuming an employee is no longer authorized to work without specific legal notice, can violate federal law—specifically Title VII (prohibiting national origin discrimination) and the Immigration Reform and Control Act (prohibiting citizenship-status discrimination). Unless you have clear, individualized notice that an employee is no longer authorized to work—and handle it neutrally and professionally—you're putting your organization at legal risk.
If you receive specific, credible information that an employee is no longer authorized to work, here's what you should do:
1. Verify the Information
Confirm that the information is individualized, specific, and credible—ideally coming from DHS, SSA, or the employee themselves.
2. Notify and Allow a Response
Inform the employee of the issue and give them an opportunity to present valid work authorization documents.
3. Evaluate Documentation
Review any documents provided according to Form I-9 rules to (re)confirm work authorization.
4. Avoid Discrimination
Do not take any action based on assumptions, rumors, or profiling. Stay clear of decisions rooted in national origin or citizenship status.
5. Take Action If Necessary
If the employee cannot provide valid work authorization, you may need to terminate employment—but be sure to document every step thoroughly.
Finally, if DHS provides formal notice that an employee's status has expired—or agents show up at your business—call your attorney immediately. Remember: your job is to run a business, not to enforce immigration law.