Seyfarth Synopsis: In light of the recent Supreme Court decision, DHS continues the DACA program, but implements new guidance as it conducts a complete review of the program.   

On July 28, 2020, the Department of Homeland Security (“DHS”) issued a memo, “Reconsideration of the June 15, 2012 Memorandum Entitled ‘Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children,” in response to the recent Supreme Court Case, Department of Homeland Security v. Regents of the University of California (“Regents”) that allowed the Deferred Action for Childhood Arrivals (“DACA”) program to continue based on regulatory grounds, as we reported in our June 19, 2020 post.  The  Supreme Court found that the Trump administration’s 2017 rescission, reported here of DACA was done in “an arbitrary and capricious way” that violated the Administrative Procedure Act (“APA”).

What Does the Memo Say?

In this memo, DHS Acting Secretary Chad F. Wolf rescinded the 2017 and 2018 memoranda that sought to end the program, and announced immediate changes to the DACA policy to mitigate the administration’s enforcement policy concerns. Pursuant to the Wolf Memorandum, the following changes will be made:

  • No initial requests for DACA should be accepted;
  • Advance parole should be granted to current DACA beneficiaries only in exceptional circumstances; and
  • Renewals of deferred action and the accompanying work authorization should be granted for one-year periods rather than two-year, periods.

On August 21, 2020, USCIS issued clarifying guidance on implementing the Wolf Memorandum. USCIS will, among other things:

  • Reject all initial DACA requests from individuals who have never previously received DACA and return all fees;
  • Accept renewal requests and the accompanying work authorization from those who had been granted DACA at any time in the past;
  • Limit grants of deferred action and employment authorization under DACA to no more than one year; and
  • Grant advance parole for travel outside the United States to DACA recipients pursuant to new guidance, which provides for a determination that parole of the alien is for urgent humanitarian reasons or significant public benefit.

The recent guidance allows temporary relief for DACA beneficiaries as the administration conducts a complete review of the program in light of the Regents ruling. President Trump even suggested on June 19, 2020 that the Administration will again try to end the DACA program, tweeting that “[w]e will be submitting enhanced papers shortly.” Without further legislation, it remains clear that the future of the DACA program remains uncertain.

What Does This Mean to Employers?

Employers can assist their employees by:

  • Providing financial assistance for filing fees related renewal applications;
  • Providing legal resources;
  • Speaking out publicly in support of the DACA community; and
  • Contacting their congressional offices to share their support of DACA beneficiaries and the importance of finding a long-term solution for this population.

Employers may also wish to assess the impact to the business should there be an end to the DACA program. Employers need to be judicious in making any hiring or termination decisions in this arena. While DACA recipients are not considered a protected class, it is still unlawful for an employer to fire or refuse to hire a DACA recipient because of their national origin. Generally, the Immigration and Nationality Act, at 8 U.S.C. § 1324b, prohibits employers from discriminating against individuals based on citizenship, immigration status, or national origin, during the hiring, firing, recruiting, Form I-9, or E-Verify processes. Accordingly, any undertaking identifying DACA beneficiaries should be carefully considered with the assistance of competent counsel to ensure that there are no missteps involving ant-discrimination.

For more information on this topic reach out to the authors Deeba Fahami and Dawn Lurie, or any member of Seyfarth Shaw’s Business Immigration Team.