Seyfarth Synopsis: Federal district court in California issues an injunction ordering the Department of Homeland Security (DHS) to accept Deferred Action for Childhood Arrivals (DACA) renewal applications while a lawsuit challenging DACA's termination remains ongoing. It is currently unknown whether DHS will agree to accept these applications, but it is expected the Department will appeal the court's ruling.
Quick Facts: U.S. District Judge William Alsup ruled that DHS must accept renewal applications while a legal challenge to DACA's termination proceeds through the court system. The court's injunction ensures that safeguards against deportation remain in place for the nearly 800,000 DACA recipients across the country.
Judge Alsup ordered DHS to issue a public notice and renewal instruction for eligible DACA beneficiaries; DHS has yet to communicate whether it will accept renewal applications per the court's order. As of this posting, DHS' DACA 2017 webpage now notes: "Jan. 10, 2018: This page is under review. More information is forthcoming." Experts expect DHS to appeal the ruling-in the interim requesting a stay-and for a long court battle to follow, perhaps culminating at the Supreme Court. Alternatively, Congress may pass legislation that provides legal status for DACA recipients, rendering the case moot. In fact, on January 9th, President Trump told bipartisan Congressional leaders that he wants a bill to allow immigrants who were brought to the country illegally as children to remain in the United States.
Background: Previously, the Trump Administration announced its plans to terminate the DACA program on March 5, 2018. U.S. Citizenship and Immigration Services (USCIS) has planned to continue to issue EADs for current beneficiaries whose benefits will expire between September 5, 2017 and March 5, 2018 that have been accepted as of October 5, 2017 for a two-year time period.
What Should Employers Consider?: The termination of DACA could result in the forced removal of hundreds of thousands of employees from the legal workforce over the next two and a half years. While the case continues, employers may wish to ascertain the amount of DACA recipients in their employ. Recent Form I-9 guidance and auto-extension rules now force employers to review certain employment eligibility basis codes. Reviewing these category codes, which are listed on EADs, may provide a starting place to assess the impact of the loss of DACA recipients on a company's workforce. However, this type of undertaking should be carefully considered with the assistance of competent counsel to ensure that there are no anti-discrimination based missteps. Seyfarth will issue an update when and if DHS begins to accept renewal applications and as major developments in the case occur.
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