As we previously reported, on November 20, 2014, the White House announced an “Immigration Accountability Executive Action” plan that would, among other relief, allow undocumented immigrants to apply to remain in the country legally and secure work authorization temporarily. (Read our report “What the President’s Immigration Accountability Executive Action Plan Means for Employers”).
In conjunction with this announcement, U.S. Department of Homeland Security (“DHS”) Secretary Jeh Johnson issued multiple directives. One of these directives was to the U.S. Citizenship and Immigration Services (“USCIS”) to establish a process deferring deportations and permitting applications for temporary work authorization by unauthorized immigrants with children who are U.S. citizens or legal permanent residents (the Deferred Action for Parents of Americans and Lawful Permanent Residents or “DAPA”).
In a 26-state action challenging this executive action as unconstitutional, District Judge Andrew Hanen penned a 123-page order blocking the DHS from proceeding with DAPA, finding it had “clearly legislated a substantive rule without complying with the procedural requirements” of the Administrative Procedures Act. A copy of Judge Hanen’s February 16, 2015 order is available here.
Although the U.S. Department of Justice (“DOJ”) appealed the decision to the Fifth Circuit Court of Appeals, with oral arguments scheduled for April 17, 2015, it also filed an emergency motion asking Judge Hanen to stay his ruling, effectively allowing the federal government to continue developing the under-challenge DAPA pending appeal. On April 7, 2015, Judge Hanen issued an order (available here) rejecting the request. Characterizing the motion as little more than a request for reconsideration, Judge Hanen stated, “[T]his Court remains convinced that its original findings and rulings . . . issued on February 16, 2015 . . . were correct.”
Although the future of DAPA remains unclear, employers should ensure they remain fully compliant with all federal and applicable state employment eligibility verification requirements, which DAPA does not purport to modify in any event. These steps are particularly important given continued Immigration and Customs Enforcement (“ICE”) efforts to audit and penalize employers that fail to comply with federal Form I-9 requirements or knowingly hire or continue to employ individuals without work authorization, temporary or otherwise.