October 25, 2021

Volume XI, Number 298

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October 22, 2021

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What Does the Supreme Court DACA Decision Mean for DACA Employers and Employees?

Court Decision 

On June 18, 2020, the U.S. Supreme Court ruled that the U.S. Department of Homeland Security (DHS) decision in 2017 to rescind the Deferred Action for Childhood Arrivals (DACA) program violated the Administrative Procedures Act (APA) because it was implemented without the required Notice and Comment and without publication of a final rule that articulates the reasonable basis for the agency’s actions.  As such, the Court ruled that DHS’s action was arbitrary and capricious.

DACA Overview

Eligible DACA recipients were brought to the U.S. as young children and grew up without legal status.  In 2012, DHS granted them deferred enforcement action and employment authorization.  There are 700,000 DACA recipients in the U.S.  See further below for our DACA eligibility checklist.

Challenges With Timely Renewal of Work Authorization for DACA Employees

One of the challenges of the DACA-based employment authorization document (EAD) is that DHS does not grant automatic continuing work authorization merely because an extension was timely filed.  Instead, an employee whose work authorization is based on DACA must have their new plastic EAD work permit in their hand the day before their current work authorization expires, or they must be temporarily laid off.  This has caused a lot of disruption for employers and DACA employees.

DHS does encourage DACA recipients to file their DACA and EAD renewal at least 150 days prior to expiration.  However, agency processing delays have still resulted in unintended terminations.  Once approved by DHS, both the Deferred Action status and work authorization will be approved for up to 2 years at a time.

Future Conduct of DHS

While the recent U.S. Supreme Court decision provides temporary relief for employees whose work authorization is based on DACA, the President and DHS have announced that they intend to clarify the basis for their termination of the program in order to obtain court approval.

DACA Checklist and Eligibility

Requirements

  • Entered the United States before age 16 and before June 15, 2007.

  • Entered without inspection or did not have legal immigration status as of June 15, 2012.

  • Continually physically present in the United States for at least five years as of June 15, 2012.

  • Under age 31 as of June 15, 2012 (can file later as long as the age requirement was met as of this date).

  • Be at least age 15 at time of application (there are some minor exceptions).

  • Attending a U.S. high school, or graduated from a U.S. high school, or obtained a U.S. GED equivalent, or attending a career or vocational job training program, or honorable discharge from the U.S. military.

  • Good moral character (and continuing beyond June 15, 2012).

  • All criteria must have been met as of June 15, 2012.

Copyright © 2021, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume X, Number 178
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About this Author

Greg L. Berk Labor & Employment Attorney Sheppard Mullin Orange County, CA
Partner

Greg Berk is a partner in the firm’s Labor and Employment Practice Group. He leads the Firm’s immigration practice and is based in Orange County, California. He is a Certified Specialist in Immigration and Nationality Law by the State Bar of California Board of Legal Specialization. He is the author of Immigration Checklists and Practice Pointers – A  Desk Reference for Attorneys and HR managers. He has also taught immigration law at two college-level paralegal certification programs in California.

Areas of Practice

He has over 20 years of...

714-424-2877
Jonathan E. Meyer, Sheppard Mullin, International Trade Lawyer, Encryption Technology Attorney
Partner

Jon Meyer is a partner in the Government Contracts, Investigations & International Trade Practice Group in the firm's Washington, D.C. office.

Mr. Meyer was most recently Deputy General Counsel at the United States Department of Homeland Security, where he advised the Secretary, Deputy Secretary, General Counsel, Chief of Staff and other senior leaders on law and policy issues, such as cyber security, airline security, high technology, drones, immigration reform, encryption, and intelligence law. He also oversaw all litigation at DHS,...

202-747-1920
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