High Court to Review Whether Trump Can End DACA Program

Employers may know in the next year what will happen to the Deferred Action for Childhood Arrivals (DACA) program, which allows some undocumented immigrants who came to the United States as children to temporarily work and avoid deportation.

The U.S. Supreme Court announced June 28 that it will review three consolidated cases addressing the issue.

Background

President Barack Obama’s administration launched the DACA program in 2012. However, under President Donald Trump in 2017, the Department of Homeland Security (DHS) announced it would rescind the program.

Since then, several federal appellate courts blocked the government from rescinding DACA. The courts found that Obama had the right to create the program by executive order and that Trump’s decision to eliminate it was likely “arbitrary, capricious or otherwise not in accordance with law.”

The federal government has asked the Supreme Court to decide:

• If the courts can review the DHS’s decision to wind down the DACA program.
• If it’s legal for the DHS to end DACA.

Lawyers for the government argue that the Trump administration’s decision to terminate DACA is not subject to judicial review and the program is unlawful.

“These cases concern the executive branch’s authority to revoke a discretionary policy of nonenforcement that is sanctioning an ongoing violation of federal immigration law by nearly 700,000 aliens,” attorneys for the government wrote in their petitions.

The respondents in the cases argued that “deferred action is a regular practice under federal immigration law” and the DACA program is “consistent with [the government’s] long-standing authority to establish” such programs.

[SHRM members-only toolkit: Understanding and Obtaining U.S. Employment Visas]

Several states, including New York, are plaintiffs in the cases. “Millions of immigrant parents left their homes, risked their lives, and endured years of hardship simply to come to the United States and provide their children with a better life,” said New York Attorney General Letitia James. “When those children came out of the shadows to go to college, serve in the armed forces, or just become tax-paying members of society, the federal government made a promise that these DACA recipients would be able to live their lives free from the fear of sudden, arbitrary deportation.”

The Supreme Court will likely hear oral arguments in the fall.

Legislation in the Works

The U.S. House of Representatives recently passed the American Dream and Promise Act, which would provide conditional green cards and employment authorization to DACA recipients, as well as to current recipients of temporary protected status and deferred enforced departure (DED) programs, which are for people from countries that are considered unsafe due to political unrest or natural disasters.

More than 2 million people living in the U.S. without legal permission would receive legal status and work authorization under the act.

The Society for Human Resource Management supports the House bill and has urged the Senate to pass its own version. “By effectively addressing this important issue now, Congress can build momentum that will lead to solutions for other important challenges, including modernizing our workplace immigration system.”

Workplace Impact

Employers are concerned about losing their workers who are authorized to work under the DACA program, noted Mira Mdivani, an attorney with Mdivani Corporate Immigration Law Firm in Overland Park, Kan. With unemployment being as low as it is now, especially in rural counties in the Midwest, employers are worried about having to scale down production and relocate businesses abroad. “Unavailability of practical options that may address the issue in a reasonable time period is frustrating to employers,” she added.

Employers should keep in mind that they need to comply with Form I-9 employment verification procedures and should not discriminate against DACA recipients with valid work permits.

An employment authorization document (EAD)—which is also known as an EAD card or a work permit—may be issued for various types of immigration categories, including under the DACA program. Employers may continue to reverify EAD cards as usual but shouldn’t take additional steps to reverify DACA beneficiaries.

Employees are not required to disclose their DACA status, and employers shouldn’t ask, said Sarah Hawk, an attorney with Polsinelli in Atlanta. HR professionals and supervisors also shouldn’t ask about employees’ plans if the DACA program ends, even if workers disclose their DACA status, she said, adding that employers may want to have a list of resources readily available for affected workers.

[Visit SHRM’s resource page on workplace immigration.]

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