In 2012, President Obama afforded some protections to individuals who had been brought to the United States while they were children. The program is commonly referred to as “DACA,” which is short for the Deferred Action Childhood Arrivals Program. (You can read our blog about DACA here.) The DACA immigration policy affords some individuals with unlawful presence in the United States who were brought to the country as children to have deportation deferred for two years. DACA applicants cannot have felonies or serious misdemeanors on their records and must pass background and fingerprint checks.
Those who become DACA recipients are permitted to get driver’s licenses, attend school, and obtain work permits. Since DACA’s creation in 2012, more than 825,000 individuals have been approved for the program. An employee who is authorized to work through DACA is category C33 on his or her Employment Authorization Document (Form I-766).
The Viability of the DACA Program has been Touch-and-Go
In September 2017, we wrote about then-Attorney General Jeff Sessions’ announcement that the government would be ending the DACA program in March 2018. According to the announcement, the government would stop accepting new DACA applications effective September 6, 2017, although it would continue to accept renewal requests for anyone whose then-current work permit expired before March 5, 2018. Anyone whose DACA work permit expired after March 5, 2018, would no longer be authorized to live, study, and work in the United States and would have been subject to deportation at the time their authorization expired.
Lawsuits quickly followed. Federal judges in California and New York questioned the administration’s decision to end DACA and ordered U.S. Citizenship and Immigration Services (USCIS) to accept DACA renewal applications while the cases in those jurisdictions proceeded. On the other hand, a federal judge in Maryland held that the decision to end DACA was lawful. When there are conflicting positions among federal courts, the Supreme Court may take up the matter, and that’s what happened with DACA.
Supreme Court Nixes Trump Administration’s Process, But DACA Remains in Jeopardy
In June 2020, the Supreme Court issued a ruling in Department of Homeland Security et al. v. Regents of the University of California, et al. agreeing with some federal courts that the reasoning given for DACA’s rescission was arbitrary and capricious under the Administrative Procedure Act (“APA”), which governs the process by which federal agencies develop and issue regulations. The bottom line is that the Supreme Court allowed the DACA program to continue, not because it was illegal to end it but because the way the Trump Administration attempted to end it was inconsistent with the APA.
So what does this mean for employers? While it is possible that the Trump Administration will attempt to end the program again, for now, employees can continue to apply for the DACA program and if approved/renewed continue to live and work in the United States. Stay tuned.