Important Considerations for Employers in Light of Fifth Circuit’s DACA Ruling

Fifth Circuit's DACA Ruling
November 11, 2022

The US Court of Appeals for the Fifth Circuit has recently upheld a district court’s decision that the Deferred Action for Childhood Arrivals program (DACA) is unlawful. This action would make it illegal for the United States Citizenship and Immigration Services (USCIS) to accept new applications and receive and process renewals. However, it will not immediately affect current recipients of the program since the Court of Appeals stayed its decision until the district court reviews it.

The appeals court stated that the district court should consider DACA in light of the revisions to the program that went into effect in August. The modifications intended to correct issues that made it unlawful, based on the findings from a judge in the Southern District of Texas. In addition, the judge emphasized how Secretary Napolitano’s 1012 memo did not comply with the Administrative Procedure Act. This memo directed DHS agencies to establish procedures allowing eligible individuals to apply for deferred action, thus leading to the DACA program.

The district court will look at a new regulation by the Biden Administration to see if it deals with these procedural concerns. In the meantime, recipients and their employers do not need to take immediate action; however, they should renew their Employment Authorization Cards (EAD) and DACA grants as necessary.

The USCIS has stated that it will continue to accept and process renewal applications for recipients even though it cannot grant new requests. The USCIS has also updated its FAQ page to clarify that the court decision will not affect current grants of DACA or the associated EADs. Accordingly, the USCIS continues to accept and process requests to renew DACA grants or the associated EADs, as well as advanced parole for current recipients.

Important Points for Employers

  • Employees who are current DACA recipients and have a valid EAD card will maintain their authorization to work until its expiration date.
  • Current DACA recipients can renew their EAD card and their DACA grant. Additionally, the USCIS will continue to process these requests and issue new approvals every two years.
  • USCIS will not accept or process initial DACA requests or the associated requests for employment authorization.

Final Thoughts on DACA

Employers must still comply with I-9 regulations when verifying or reverifying recipients. However, these regulations can prove confusing due to frequent changes. The best way to remain in compliance with these regulations is to use an electronic I-9 management tool. This tool guides employers through every step and ensures the forms are safely and securely stored until needed.

Increase your hiring and verification efficiency today with I-9 Compliance automation.