On June 18, 2020, the U.S. Supreme Court blocked the Trump administration’s rescission of the Deferred Action for Childhood Arrivals (DACA) program, which protects undocumented immigrants – referred to as “Dreamers” – from deportation. This court decision was specifically limited to procedural grounds and, for now, allows Dreamers to continue to receive temporary protection from deportation.
The Obama-era DACA program allows qualified enrollees – undocumented immigrants who were brought to the United States before age 16, are attending school, and have no felony convictions – to work, study, and remain in the United States with renewable two-year work permits and deportation deferrals. In this case, the dispute was primarily about the procedure the Department of Homeland Security (DHS) followed in its effort to rescind DACA in 2017. In upholding the program, the court’s ruling did not determine “whether DACA or its rescission are sound policies” but rather that DHS did not comply with the procedural requirements for terminating it. The court then remanded DACA’s rescission issue back to DHS for further consideration.
This court ruling only temporarily shields DACA recipients, since it left the door open for the current administration to properly unwind the program if the president is re-elected in November.
What does this mean for Dreamers and their potential employers?
While DACA recipients, who are estimated at around 700,000, are breathing a sigh of relief, the court made clear that the president and his administration have both the power to continue the program and the power to terminate it if they follow the correct legal process. Though unlikely, the administration can also choose to preserve the Deferred Action (protection from deportation) portion of the program but rescind its employment authorization benefit, particularly in light of its hope to restore employment to U.S. workers terminated because of COVID-19.
However, until and unless DHS fully or partially ends DACA in the correct way as the court instructed in this ruling, DHS must create a fair and expeditious process to resume processing DACA applications, which include open market employment authorization. Because it can take months or longer for the correct regulatory process and legal challenges to play out, any major changes to DACA are unlikely to materialize until after this year’s election.
Employers should consult with their Taft attorneys for further advice regarding the impact of this court decision on their workplace practices.