- The Trump administration violated federal law when it rescinded the Deferred Action for Childhood Arrivals (DACA) program, the U.S. Supreme Court held June 18 in a ruling that employment experts say is reason for cautious optimism (Department of Homeland Security v. Regents of the University of California, No. 18-587 (U.S. June. 18, 2020)).
- The Court said the U.S. Department of Homeland Security’s (DHS) decision to rescind the policy was "arbitrary and capricious," in violation of the Administrative Procedure Act.
- The program, implemented by the Obama administration, allows certain unauthorized aliens who arrived in the U.S. as children to apply for a two-year forbearance of removal, the Court explained.
Employers are breathing "a sigh of relief for today but they still need to remain on guard with DACA employees if they have any or if they plan to hire any in the future," Nandini P. Nair, a partner at Greenspoon Marder, told HR Dive in an interview.
The High Court did not examine the essence of the program, she explained. Rather, it said the administration didn’t approach the rescission in the right way; it failed to give a proper legal justification for its decision to end DACA, so "it can continue to live for another day."
It’s possible the administration could try again, Nair noted: DHS acting deputy secretary Ken Cuccinelli, in a statement following the ruling, called the decision "an affront to the rule of law."
"No Justice will say that the DACA program is lawful, and that should be enough reason to end it," he continued.
But even future attempts to end the program may encounter obstacles, Richard Burke, president and CEO of immigration services provider Envoy Global, told HR Dive in an interview. That’s because courts are "suspicious" about the administration’s motives due to President Donald Trump’s campaign rhetoric on immigration, Burke said.
Additionally, the U.S. is in an election year and there is broad support for dreamers, Nair said. A June survey conducted by Pew Research Center found 74% of Americans favor a law that would provide permanent legal status to immigrants who came to the U.S. legally as children, including 54% of Republican-leaning respondents.
DACA has also proven important to employers’ strategies for attracting talent: "While the pandemic has altered the employment landscape, many are still struggling to fill these high-skill positions," Burke said. "[Employers] know that these folks are here and working and have a tremendous amount to offer to their company and the economy."
For now, employers should maintain all compliance requirements, Nair said; continue to review work authorizations and proceed with normal onboarding protocols. In particular, they should ensure that employees who are DACA recipients are applying to the government for the two-year renewal of their status, according to Burke. Employers should also continue to pay attention to any future legal developments involving the program, he added.