DACA Developments

On September 5, 2017, the Trump administration announced that it would formally end the Deferred Action for Childhood Arrivals (DACA) program.  Since then, 19 states and the District of Columbia have sued the Trump administration over its decision to rescind DACA, an Obama-era protection for individuals brought to the United States without proper documentation as children.  The state attorneys general have laid out several different constitutional arguments against the administration’s decision, arguing the rescission stems from discriminatory animus, violates due process rights, and fails to adhere to administrative procedure.  In California, Attorney General Xavier Becerra also argued that ending the DACA program would adversely impact the state’s economy since a quarter of DACA recipients—around 200,000 individuals—live and work in California.

Despite the numerous lawsuits against the Trump administration’s DACA decision, an imminent decision is unlikely.  As we previously reported, the decision to end DACA will impact employers of DACA recipients in several ways, so impacted employers are advised to review the expiration dates of employees on DACA and make preparations for workforce replacement if this issue is not resolved by litigation or legislation by DACA's March 5, 2018 expiration date.

Temporary Protected Status Developments

On the heels of the DACA decision, the Trump administration reportedly will soon make a decision on whether to continue the temporary protected status (TPS) program for certain individuals from countries currently experiencing armed conflict, environmental disaster, or other extraordinary and temporary conditions.  TPS beneficiaries are not removable from the United States and may obtain travel and employment authorization documentation.  However, a designee’s temporary protected status ends once the Department of Homeland Security (DHS) determines the conditions in the designee’s home country have improved and no longer meet the TPS criteria.  Several countries on the list include:

• Sudan and South Sudan (current expiration date of November 2, 2017)
• Haiti (current expiration date of January 22, 2018)
• El Salvador (current expiration date of March 9, 2018)

Employers may continue to employ TPS beneficiaries with valid Employment Authorization Documents (EAD) prior to the expiration date of their temporary protected designation.  Once the EAD expires, it will be unlawful for employers to continue employing TPS beneficiaries (unless they meet other lawful immigration employment criterion), and therefore should terminate their employment. Employers may not, however, terminate employees now on the basis that their EAD may expire at a future date and cannot be extended.  TPS beneficiaries are not allowed to work if their current EAD expires, unless other I-9 documentation can be presented. Note that if a timely extension is filed and TPS is still valid, the 180-day automatic extension applies. 

As with DACA, employers should review the expiration dates of employees who are TPS beneficiaries and prepare for workforce replacement in the event DHS fails to renew their home country’s designation.