A federal judge recently struck down the Trump administration’s recent efforts to significantly restrict the Deferred Action for Childhood Arrivals (DACA) program, which provides protection from deportation for approximately 700,000 young immigrants who were brought to the U.S. as children and no longer have lawful immigration status. However, federal immigration officials have not yet begun complying with the decision, leaving the country in a state of temporary limbo. What do employers need to know about this development?
DACA Program Explained + Brief Litigation History
DACA recipients are eligible for employment authorization in renewable two-year increments. DACA recipients represent a sizeable group with the U.S. workforce. More than half of DACA recipients are employed in the U.S., commonly in hospitality, retail trade, construction, health and human services, and professional services.
The Trump administration has made several attempts to end or curtail the DACA program. In 2017, former Acting Department of Homeland Security (DHS) Secretary Elaine Duke announced that the DACA program would be phased out. Her memorandum provided that U.S. Citizenship & Immigration Services (USCIS) would reject all initial DACA applications filed after September 5, 2017 and all renewal applications filed after October 5, 2017. The Memo was swiftly challenged in federal court, resulting in court orders requiring the government to accept applications for DACA renewal nationwide.
In June 2020, the U.S. Supreme Court preserved DACA by ruling that the administration’s justifications for ending the program were arbitrary and capricious. Recognizing that the program created significant reliance interests for DACA recipients, their employers, and the economy, the Court found that government did not comply with the procedural requirement to provide a reasoned explanation for its action.
Despite this ruling, USCIS continued to reject initial DACA applications, and the U.S. District Court in Maryland directed the administration to begin accepting new DACA applications in July 2020. Instead, Acting Secretary of Homeland Security Chad Wolf issued a memorandum directing DHS to conduct a comprehensive review of the program and determine whether steps should be taken to terminate it.
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