February 15, 2018
Emerson Beishline, Compliance Counsel at Ceridian.
On Tuesday, Feb. 13, a judge in New York federal district court temporarily required the Department of Homeland Security to continue accepting Deferred Action for Childhood Arrivals (DACA) renewal applications. Tuesday’s ruling comes on the heels of a similar order issued by a federal district court judge in California about a month ago.
The U.S. Department of Justice is seeking to appeal the California order directly to the U.S. Supreme Court. The Supreme Court is due to decide as early as this Friday whether it will hear the appeal. If the Supreme Court chooses to hear the appeal, the earliest we could see a decision from the court is likely June 2018.
Senate Majority Leader Mitch McConnell said Tuesday that he is giving the Senate one week to come up with a solution for DACA. In the meantime, McConnell has expressed support for an immigration bill that would provide a pathway to citizenship for approximately 1.8 million undocumented immigrants in exchange for very strict controls on legal immigrations. Passage of this bill is unlikely due to its unpopularity with Democratic senators.
These DACA developments mean that the Department of Justice will be required to process most renewal applications, at least until the Supreme Court or the Ninth Circuit Court of Appeals issue a decision.
Employers are now faced with balancing support for their employees who may be DACA recipients while trying to prepare for upcoming changes, including the possibility that certain positions may have to be vacated because of the DACA decision. If Congress fails to act or if the courts decide to uphold the decision to end the DACA program, DACA recipients will be forced out of the workforce. As difficult as the choices may be to employers, failure to comply with federal employment verification processes has the potential to open employers up to serious civil and criminal penalties.
In preparation for the possible end of the DACA program, employers should take care to avoid prematurely terminating any known DACA recipients or asking individual employees about their work status because these actions have the potential to open the company up to discrimination lawsuits.
Disclaimer: The information provided in this post is provided for informational purposes only and should not be relied upon or construed as legal advice and does not create an attorney-client relationship. You should review with your legal advisors how the laws identified in this post may apply to your specific situation.