On June 18, 2020, the U.S. Supreme Court issued a decision allowing the Deferred Action for Childhood Arrivals (DACA) program to continue operating. In so holding, the Court found the Department of Homeland Security (DHS) did not provide an adequate justification for terminating the DACA program and, thereby, violated the Administrative Procedure Act (APA). But the Court’s decision does not resolve the matter entirely.
The Court did not rule on the legality of the DACA program itself. Instead, it merely repudiated the way DHS tried to rescind it. Although the Court held the DHS’s justification to terminate DACA was arbitrary and capricious, it recognized the DHS has the authority to rescind the program if it follows the required APA procedure. Thus, the DHS could try again to end the program by explaining more clearly its reasons for doing so.
Below, we answer two questions: (1) What is the status of the DACA program; and (2) What impact will the Court’s ruling have on DACA recipients and employers?
What is the status of the DACA program?
DACA, created in 2012, provided relief from deportation and authorized employment for certain undocumented immigrants brought to the country as children (often referred to as “Dreamers”).
In September 2017, the Trump administration announced its plan to end DACA and gave Congress six months to develop a legislative solution. Congress did not pass any legislation, and lawsuits were filed trying to stop the termination of the DACA program. Pending the judicial challenges, U.S. Citizenship and Immigration Services (USCIS) was ordered to continue processing DACA renewal applications, including Employment Authorization Documents. However, USCIS was allowed to stop accepting new applications for DACA protection.
Though the DHS could take future action to end the DACA program, the Court’s decision leaves the program in place for now. As a result, employers and DACA employees should be mindful that the rules may still change. It is also unclear whether the USCIS will start accepting new applications for DACA protection.
What are the implications for DACA recipients and employers?
The continuation of DACA means that DACA recipients may continue to work lawfully in the United States and seek renewals of their work permits for the time being. The approximately 700,000 undocumented U.S. residents who were brought to the United States as children will not lose their current protection from removal and can continue to attend school and work. As the decision is still recent, USCIS has not yet provided guidance related to how it will process new applications or renewals. It did issue a statement in response to the Court’s decision, stating “[t]oday’s court opinion has no basis in law and merely delays the President’s lawful ability to end the illegal Deferred Action for Childhood Arrivals amnesty program.” It remains to be seen whether the Trump administration will take any other actions to rescind DACA in advance of the 2020 presidential election.
In the wake of the decision, employers should continue to treat DACA employees and job applicants the same as other employees and job applicants. This is especially true at the I-9 stage where employers should remember that all applicants are free to use any of the qualifying I-9 documents, including the Employment Authorization Document, which a DACA applicant is more likely to use. Recent court cases emphasize employers could be in violation of the law if they treat DACA recipients differently from other job applicants or employees. Employers should refrain from requiring a particular document from job applicants. Employers may also want to ensure employees who are current DACA recipients are applying to the government for the two-year renewal of their status.
Employers should consult with their Reed Smith attorneys for further advice regarding the impact of the Court decision on their workplace practices and what steps they should consider taking.
 USCIS, USCIS Statement on Supreme Court’s DACA Decision, June 19, 2020, available at https://www.uscis.gov/news/news-releases/uscis-statement-supreme-courts-daca-decision.
 Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., Nos. 18-587, 18-588, 18-589, 2020 U.S. LEXIS 3254 (June 18, 2020).