Deferred Action for Childhood Arrivals (DACA)

In a one page opinion, the United States Supreme Court remanded one of the two “travel ban” cases pending SCOTUS review. The Order remanded Trump v. International Refugee Assistance Project back to the 4th Circuit Court of Appeals because the case is now “moot” – the Court found no controversy because the challenged Executive Order 13780 “expired on its own terms.” The Court provided no opinion on the merits of the case.

In earlier posts, we also covered Trump v. Hawaii, another challenge to President Trump’s “travel bans.” This case remains pending because the challenged provisions of the March 6th Executive Order have not expired, unlike Executive Order 13780. Specifically, the March 6th Executive Order placed restrictions on the refugee program that remain in effect. The expiration date for this Executive Order is October 24th. We expect to see another iteration of the refugee restrictions or other immigration-related restrictions by October 24th.

More recently on September 24, 2017, President Trump also issued a Proclamation limiting entry into the United States from individuals from six countries – Iran, Libya, Somalia, Syria, Yemen, Chad, North Korea, and Venezuela. Unlike prior Executive Orders, this Proclamation is relatively more nuanced and does not contain a blanket ban on all travelers from the listed nations.

Shifting gears to the Deferred Action for Childhood Arrivals (DACA) controversy: Attorney General Jeff Sessions’ announcement last month ending DACA was followed by multiple lawsuits against the Administration. Several states including New York, Massachusetts, Washington, Connecticut, Delaware, Hawaii, Illinois, Iowa, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, and Virginia, California, Maine, Maryland, and Minnesota, and D.C all filed suits against the Administration citing Constitutional challenges, among others.

An estimated 800,000 individuals relying on DACA will face uncertainty as a result of DACA’s termination. The deadlines for first time and renewal applications have passed. Therefore, barring Congressional or Executive action on the matter, no individual currently working as a result of DACA may be permitted to legally work in the United States once their work permit expires.

Independent of the legal and political debate, ending DACA is likely to have an enormous economic impact on both DACA-authorized employees and their employers. Employers are called to maintain contingency plans should those working under DACA lose their work permits, and ensure continued compliance with immigration laws.

Recently, the U.S. Supreme Court issued a 4-4 decision in United States v. Texas, a case challenging the expanded Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). The decision affirms the lower court’s injunction, effectively preventing the implementation of the two Presidential initiatives. The decision will impact millions of undocumented immigrants by eliminating potential employment authorization and protection from removal efforts. The decision also appears to limit the President’s efforts to expand executive authority, at least as it relates to immigration reform. However, the decision does not impact the original DACA program.

The DACA program is a result of executive action in 2012, which provided prosecutorial discretion with respect to minor children who entered the US without inspection or those who are entered legally but are currently out of status and subject to removal.  The DACA program does not confer any substantive rights, immigration status, or other pathway to legal citizenship, but is simply an executive branch function establishing policy for the exercise of discretion within the existing law. Participants in the DACA program are eligible for employment authorization and not typically subject to deportation and removal.

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.