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DACA Update for Employees

Published: Apr 12, 2018

The Deferred Action for Childhood Arrivals (DACA) program was created by the Obama administration in 2012 and allowed undocumented immigrants, who came to the U.S. as children and met certain eligibility criteria, to request a period of deferred action from the government and apply for U.S. work authorization.

On the orders of  President Donald Trump last September, Attorney General Jeff Sessions declared that DACA would end March 5, 2018 and the Department of Homeland Security (DHS) stopped taking new applications for DACA on October 5, 2017.

Recent Developments

Since then, district judges in California and New York have blocked the administration’s repeal of DACA and ordered the DHS to resume renewing all existing DACA permits. (It is key to note they did not allow for new registrations by individuals who have not previously received DACA relief.)

The courts’ interventions effectively rendered the March 5th deadline invalid and the DHS has resumed accepting requests to renew a grant of deferred action under DACA.  The DHS U.S. Citizenship and Immigration Services department’s website states, “Until further notice, and unless otherwise provided in this guidance, the DACA policy will be operated on the terms in place before it was rescinded on Sept. 5, 2017.”

The Justice Department then asked to appeal the California decision directly to the Supreme Court, but the Supreme Court declined to hear an expedited appeal of the case, which is not unusual.  Now, the case will proceed with the Ninth Circuit Court of Appeals hearing the administration’s appeal of the California judge’s order and the Second Circuit Court of Appeals, on the East Coast, hearing an appeal of a similar order.

Next Steps

With the process now going to the Courts of Appeals, it could take until at least summer for a ruling. Unless lower court decisions are reversed in the Courts of Appeals, renewals will likely remain open until the Supreme Court accepts and rules on the cases after the Court of Appeals courts rule. This  will  most likely occur during the Supreme Court’s next term, which starts in October.

If Congress takes action in the meantime, all court cases could become moot. March 23rd is the next government funding deadline and some lawmakers have suggested they may try to use the must-pass package of funding bills as a point of DACA leverage, but experts feel this is unlikely.

What Does This Mean to My Company?

With the fate of DACA in limbo -- and 700,000 DACA recipients estimated to be working for U.S. employers currently -- how should U.S. companies prepare for the possible end of DACA? 

Even if the courts allow the injunctions to remain in place, the administration can still attempt to end DACA through legislation, requiring formal notice, and comment.   Therefore, NEI and our immigration partner, BAL, recommends employers continue to plan for the end of DACA and, at the very minimum, understand their obligations and restrictions regarding DACA employees.

NEI encourages all clients to review The BAL U.S. Practice group’s FAQs on DACA and how the potential change might impact each company and their affected employees.  While the dates have obviously changed, there is important information regarding an employer’s responsibilities, should DACA end.  The full list of FAQs can be found at BAL’s website located here or at: http://news2.balglobal.com/ldOB8000J9ml0M1Z50I0F0J

This document does not constitute legal advice.  Individuals should consult with their legal authorities prior to taking any actionable steps.  Should you have any questions specific to your relocation program, please contact your NEI representative to discuss.

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