Executive Order Travel Ban Update
In recent days, the US Supreme Court (SCOTUS) has once again weighed in and issued a preliminary ruling regarding the Executive Order Travel Ban (EO) challenge in Trump v. Hawaii. For background, please see our prior blog posts detailing the travel ban EO’s history and SCOTUS’ decision of June 26th.
On September 12, 2017, SCOTUS issued an order blocking the Ninth Circuit Court of Appeal’s September 7, 2017 ruling that would have exempted from the travel ban refugees who have a formal assurance from a refugee resettlement agency. Per this ruling, refugees are now barred from entry under the EO if their sole basis for establishing a “bona fide relationship” with a person or entity in the United States is based on a formal assurance from a refugee resettlement agency. However, SCOTUS order did not disturb the Ninth Circuit’s September 7, 2017 ruling with respect to grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States. These individuals remain exempt from the EO travel ban. The Supreme Court will hear arguments on the merits of the challenge to travel and refugee ban on October 10, 2017.
Earlier this month, Attorney General Sessions announced the administration’s plan to eliminate the Deferred Action for Childhood Arrivals (DACA) program. This announcement came out as several states were readying to file lawsuits challenging the constitutionality of DACA. The DACA program, initiated during the Obama administration, allows some individuals (approximately 800,000 registrants) who entered the country illegally as minors to receive a renewable two-year period of deferred action from deportation and a corresponding employment authorization document (EAD). Following the Attorney General’s announcement, the Department of Homeland Security (DHS) outlined the steps it is taking to phase out the program.
Current DACA recipients will retain their deferred action status and their EAD until expiration, unless terminated or revoked. In addition, DHS/US Immigration and Citizenship Services (USCIS) is continuing to adjudicate initial and renewal DACA and work authorization applications filed prior to September 5, 2017. USCIS will also continue to accept DACA renewal applications through October 5, 2017 for DACA recipients whose benefits will expire between September 5, 2017 and March 5, 2018.
The above means that a significant number of DACA recipients will be authorized for employment well into 2019, or possibly beyond. Therefore, Employers should not overreact and treat DACA authorized individuals differently than other employees or candidates with temporary work authorization. DACA recipients are entitled to the same protections against discrimination in the workplace as other workers, and it is unlawful for an employer to fire any authorized worker simply because of their nationality or immigration status.
Here are some best practice tips that will assist employers in staying compliant with employment verification rules while avoiding immigration discrimination violations regarding DACA or other employees:
- Timely complete Form I-9 upon hire of each employee and assure the hired employee presents original, unexpired acceptable documents evidencing identity and employment authorization per I-94 instructions.
- Reverify employees with expiring temporary work authorization documents timely and consistently. Employers must reverify the employment authorization no later than the date employment authorization expires. Employers should use Section 3 of Form I-9, or if Section 3 has already been used for a previous reverification or if the version of the I-9 is no longer acceptable for use, then use Section 3 of a new Form I-9.
- Commence reverifications consistently for all employees. Sending notification/warnings to employees 3-4 months prior to the expiration of their work authorization is a good practice.
- During the reverification process, maintain the same level of professionalism that is always required in examining original Form I-9 documents. Remember, you are subject to a “constructive knowledge” standard in reviewing documents. Never accept photocopies of documents and do not accept documents if you know, or have good reason to believe, that they are false.
- If they have not voluntarily advised, do not ask employees or job candidates if they are DACA recipients or to reveal their citizenship or immigration status. If you follow the I-9 and reverification protocols properly, this will not be necessary to stay compliant. The only exceptions for knowing citizenship/immigration status pertain to employers hiring individuals that must obtain a security clearance or employers subject to applicable export control restrictions.
Even in light of DACA’s demise, there is now talk of immigration legislation that could provide a permanent solution for these DACA “dreamers.” This comes after 16 states, including California, New York, Massachusetts, Washington, Connecticut, Delaware and Hawaii, filed legal challenges to the rescission on due process and equal protection grounds. Stay tuned as we follow these developments.