Yesterday, a federal district court in Texas issued a preliminary injunction in a lawsuit filed by 26 states to block the implementation of new immigration programs announced through President Obama’s November 2014 executive order. This decision represents a critical first finding that the plaintiff states have standing to challenge the President’s actions due to the impact of illegal immigration on their financial resources. The court also concluded that the President’s actions amounted to a violation of the Administrative Procedure Act’s “notice and comment” requirements, and that the challenging states had shown a substantial likelihood of success on the merits in their efforts to block the implementation of these programs.
The Department of Justice is expected to immediately challenge this ruling at the U.S. Court of Appeals for the Fifth Circuit in New Orleans. The ruling comes at a crucial time because the implementation date for the expanded DACA program (a program that would provide work authorization to those who entered the United States as children) is tomorrow (February 18, 2015). A larger, more expansive program providing similar benefits to the parents of U.S. Citizens and Legal Permanent Residents (DAPA) is expected to be implemented by USCIS in May 2015.
While these legal maneuverings weave their way through the federal courts, employers are advised to continue planning for an influx of previously undocumented, newly work-authorized individuals. Given the traditional supremacy of the federal government in matters involving the execution of the immigration laws, the Texas district court’s ruling is far from the last word on this matter, and USCIS can be expected to continue implementing these laws if the Fifth Circuit sets aside the ruling. The ongoing or new employment of individuals benefiting from these executive orders will present complex issues, including the presentation of corrected identities by existing employees, the application of employer honesty policies, and the extent to which employees may be permitted to refuse to work with individuals presenting Employment Authorization Cards (EADs) through this program. Franczek Radelet is prepared to provide counsel and advise to employers seeking to conduct preventive I-9 audits, adopt best practices for dealing with newly work authorized individuals, and otherwise prepare for the implementation of these programs.