Are DACA Recipients Eligible for Federal Employment?

Legal Sidebari

Are DACA Recipients Eligible for Federal
Employment?
January 15, 2019
The Immigration and Nationality Act (INA) prohibits employers, including federal agencies, from
knowingly hiring non-U.S. nationals (aliens) who are not authorized to work in the United States. By
statute, certain aliens are generally authorized to work in the United States, and the Secretary of the
Department of Homeland Security (DHS), by regulation, may enumerate additional categories of aliens
who may obtain permission to work. Using this power, DHS has generally permitted aliens who obtain
relief under the Deferred Action for Childhood Arrivals (DACA) program to seek employment in the
United States. Aliens who qualify for DACA relief—namely, certain aliens who came to the United States
as children, lack lawful immigration status, and have not engaged in activities that render them ineligible
for relief—may be permitted to remain in the United States and receive work authorization for renewable
two-year periods. (In 2017, the Trump Administration announced that it would rescind DACA; but as
detailed in this Sidebar, several federal district courts have enjoined most aspects of the announced
rescission from taking effect.)
While DACA recipients may obtain work authorization and certain other benefits, annual appropriations
enactments restrict federal employment eligibility for most non-U.S. citizens, including DACA recipients.
In the last few years, there has been some debate over whether DACA recipients should be eligible for
federal employment, and, in particular, whether they should be able to work as paid federal employees in
congressional offices. This Sidebar briefly examines laws governing the employment of aliens in the
United States, including restrictions on federal employment and their application to DACA recipients.
Federal Restrictions on Alien Employment
Under INA § 274A, it is unlawful for “a person or other entity . . . to hire, or to recruit or refer for a fee,
for employment in the United States an alien knowing the alien is an unauthorized alien.” The provision
also bars the continued employment of an alien found to be unauthorized. These restrictions apply to any
“person or other entity” that hires, recruits, refers for employment, or continues to employ an alien known
to lack employment authorization. These limitations apply not only to private entities, but also to “an
entity in any branch of the federal government”; federal regulations implementing this provision, in turn,
define an “entity” as “any legal entity, including but not limited to, a corporation, partnership, joint
venture, governmental body, agency, proprietorship, or association.” Covered entities must also comply
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with certain employment verification requirements (e.g., examining documentation showing the alien’s
identify and eligibility for employment and, depending on the entity, confirming employment eligibility
through the “E-Verify” online verification system).
The employment restrictions mandated by INA § 274A apply to any alien who is not authorized to work
at a particular time in the United States (described in INA § 274A as an “unauthorized alien”). Under the
statute, however, there are three general categories of aliens who are eligible to work in the United States:
(1) an alien lawfully admitted for permanent residence (LPR); (2) an alien authorized by another statute to
be employed in the United States (e.g., persons granted Temporary Protected Status); and (3) an alien
“authorized to be so employed” by the Secretary of Homeland Security. For this latter category, DHS
regulations list certain classes of aliens who may apply for employment authorization with U.S.
Citizenship and Immigration Services in order to work in the United States, and who may be subject to
certain restrictions regarding their employment. These designated categories include aliens granted
deferred action, “if the alien establishes an economic necessity for employment.” Based on these
regulations, deferred action recipients, including those granted relief through the DACA initiative, are
eligible for employment authorization if they establish the required economic necessity.
Employment of Non-U.S. Citizens in the Federal Government
Although DACA recipients are generally able to work in the United States (assuming they apply for and
receive employment authorization), there are some notable limitations imposed on the employment of
non-citizens in the federal government. These restrictions, with varying degrees of exceptions, have been
in place long before DACA was implemented in 2012. Currently, annual appropriations enactments
prohibit the use of funds for the compensation of any federal government employee or officer in the
continental United States unless that person is (1) a U.S. citizen, (2) an LPR who is applying for
naturalization, (3) a person admitted as a refugee or granted asylum who has filed a declaration of intent
to become an LPR and eventually a U.S. citizen, or (4) a non-citizen, U.S. national who owes allegiance
to the United States (e.g., a person born in American Samoa). This restriction does not apply to
international broadcasters employed by the Broadcasting Board of Governors, translators temporarily
employed by the federal government, temporary field service employees (for no more than 60 days), and
Wildland firefighters employed for no more than 120 days.
DACA recipients do not fall within any of the categories of non-U.S. citizens currently exempted from
annual appropriations enactments’ funding restrictions. As a result, except for a few narrow categories of
federal employment (e.g., temporary translators and temporary Wildland firefighters), DACA recipients
generally may not obtain federal employment.
Federal regulations also provide that no person is eligible for a “competitive service” position in the
federal government unless he or she is a U.S. citizen or national. The Office of Personnel Management
(OPM) defines “competitive service” positions as those involving a competitive hiring process (including
a hiring examination) open to all applicants. While OPM has created an exception to the restrictions on
competitive service positions when there are no qualified U.S. citizens available for the position, the non-
U.S. citizen still may be hired only if permitted by the appropriations law.
These restrictions on federal employment, however, do not bar DACA recipients from obtaining federal
internships through third-party organizations or fellowship programs because, in those circumstances, the
DACA recipients are not formally employed by the federal government. For example, the Congressional
Hispanic Caucus Institute offers an internship program in a congressional office for undergraduate college
students, and the internship program is available for any student with work authorization, including
DACA recipients. For that reason, although federal appropriations laws and regulations significantly limit
the availability of federal employment for DACA recipients, these limitations do not entirely foreclose
them from performing any work in federal government offices.

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Legislative Options
Given the restrictions on federal employment for non-U.S. citizens, particularly DACA recipients, some
lawmakers have called for expanding the range of non-U.S. citizens who could pursue federal
employment. Some contend, for example, that because DACA recipients have been present in the United
States since childhood, unlike other categories of aliens, they should be eligible to pursue federal
employment like U.S. citizens or LPRs. Opponents of the expansion, among other things, argue that
aliens with no lawful immigration status should not be able to compete with U.S. citizens for federal jobs.
While recent appropriations measures would extend federal government funding through FY2019, they
would not alter the restrictions on federal employment for DACA recipients and other non-U.S. citizens.
Nevertheless, there have been efforts by some in Congress to expand the classes of non-U.S. citizens who
are eligible for federal employment, including in congressional offices. For example, in 2017, an
amendment to the Financial Services and General Appropriations Act was introduced to allow DACA
recipients with employment authorization to be eligible for federal employment. Additionally, in 2016 and
2017, bills were introduced (H.R.97 and H.R.4842) that would have authorized the employment of DACA
recipients in House and Senate offices. These and other legislative options with respect to DACA
recipients may be considered in the 116th Congress.


Author Information

Hillel R. Smith

Legislative Attorney




Disclaimer
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