With the U.S. Supreme Court deadlocking in a 4-4 vote in the case of United States v. Texas last month, the injunction issued by a lower federal court blocking the implementation of President Obama’s push for immigration relief remains in effect. For employers who have been watching the case play out since Texas and 25 other states filed the lawsuit back in late 2014, the Supreme Court’s ruling doesn’t so much offer the definitive answer some were hoping for, as a continuance.
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At issue in this case was the legality of Executive Orders issued by President Obama that would address immigration: the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program and an expansion of the Deferred Action for Childhood Arrivals (DACA) program. (This proposed expanded version of DACA is known as DACA+.)
Originally passed in 2012, the unexpanded DACA program essentially provides temporary protection from deportation, as well as the ability to apply for work authorization, to immigrants who arrived in the U.S. prior to the age of 16. DACA+ would have expanded eligibility requirements for the program, as well as increasing the period of deferred action from two years to three. DAPA would have extended temporary protection from deportation and work permits as well as the ability to immigrants who are parents of U.S. citizens and lawful permanent residents. While the Supreme Court’s tie vote leaves in place the injunction blocking DAPA and DACA+, it does not affect DACA as it is currently in place, nor those eligible under the current requirements.
Although DAPA/DACA+ are essentially dead in the water, employers shouldn’t think that major immigration reform efforts are as well – this decision just means it’s not happening right now. Indeed, the 4-4 deadlock means that no legal precedent has been set. Once a ninth justice is nominated and confirmed, there is the possibility that the Supreme Court may choose to rehear the case.
Because United States v. Texas does not address the legality of the 2012 version of DACA, those who have been granted deferred action and work permits under the program, as well as those currently applying or who are currently eligible, are unaffected. Those who have been granted work permits will still be issued an Employment Authorization Document (EAD), which is one of the documents listed as acceptable for establishing identity and employment authorization as part of the Form 1-9.
According to guidance issued by the U.S. Citizenship and Immigration Services, employers should continue to accept unexpired EADs presented by newly hired employees or as necessary for existing employees, as long as they appear to be genuine and relate to the person presenting the document, and continue with the process as described in the Form I-9 instructions. For more strategies on I-9 compliance, check out these practical I-9 strategies for employers.
Although the current result of United States v. Texas more or less reaffirms the status quo, employers should endeavor to stay up-to-date on the issue and legalities of immigration reform, as it is likely to continue to be a hot topic over the next year.
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This article is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. Readers should contact legal counsel for legal advice.