THE SIGNIFICANCE OF THE DACA DEVELOPMENTS

On September 5, 2017, President Trump announced that he would end the program that protects undocumented immigrants that entered the U.S. as children, while urging Congress to pass broad immigration legislation protecting these persons.  The Obama Administration initiated the Deferred Action for Childhood Arrivals (DACA) in 2012 stating that immigration officials should exercise "prosecutorial discretion" and focus on "enforcement priorities," rather than low priority cases like those persons brought to the U.S. as children.  DACA not only deferred deportation for these children who have been called "dreamers," but also made them eligible for temporary work authorization.  The DACA Program applied to some 800,000 immigrants, and two years later the Obama Administration expanded the protections.  The later program was known as the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) which would have granted legal protection to 4,000,000 or so undocumented immigrants.  A federal district court prohibited the Obama Administration from implementing the latter program, a decision later upheld by the Fifth Circuit Court of Appeals.  The court said that the Obama Administration did not go through the proper procedures to implement the rules to create substantive rights, and that the expanded program would also fail because it was contrary to existing immigration legislation.  Therefore, when the Trump Administration announced the ending of the DACA program, Attorney General Sessions said that the DACA Program would likewise be enjoined just like the latter program as a violation of applicable law.  Several states led by Texas had threatened to sue to enjoin the DACA protections.

Bipartisan legislation introduced by Senators Graham and Durbin will provide a path for legalization for DACA recipients.  The Trump Administration called for "an orderly wind-down of DACA" rather than wait for a potentially disruptive court injunction.  The current Dreamers whose permits expire over the next six months will be allowed to apply for renewals by October 5, but no new applications will be accepted.   Addressing concerns that existing DACA recipients will then become subject to deportation, the Trump Administration announced that those persons are not enforcement priorities unless they are criminals.  As of press time, President Trump was attempting to reach a compromise agreement with Congressional Democrats on a bipartisan agreement to provide protection to the "dreamers" and to work together to improve boarder security that would not include an agreement on the "border wall."

Editor’s Note: Although not required, employers may want to help with the DACA renewal process if employees are among those who can renew their work permits by October 5.  However, employees are not required to disclose their DACA status and employers should not be confronting them as to their status.  Of course, on request, employers can suggest resources, or employers may post a general notice of information.  It is possible that some of these persons can also stay in the country by applying for asylum or temporary protected status.  Of course, if a DACA recipient loses worker authorization, employers are liable for employing them if they know or should have known the workers are not authorized.  Although DACA recipients may not be terminated before their work permit expires, the employer must be careful to discontinue the employment if the company has knowledge that the worker’s authorization has expired.