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Employers Confront Tough Choices as Court Bars Future Dreamers

July 21, 2021, 4:27 PM

Employers of young immigrants known as Dreamers are facing tough decisions in light of a recent court ruling.

The more than 600,000 individuals in the Deferred Action for Childhood Arrivals program weren’t immediately affected by an opinion from a federal judge that declared the program unlawful. The accompanying injunction, however, barred new participants in the program, which allows people who unlawfully entered the country as children to work.

“It is indeed likely that some employers will be concerned about the implications of the ruling and that it may lead them to avoid promoting or advancing recipients based on concerns about the durability of their work eligibility,” Leon Rodriguez, a former director of U.S. Citizenship and Immigration Services now with Seyfarth Shaw LLP, said via email.

Biden Faces Narrow Path to Aid Dreamers Without Congress, Courts

U.S. Vice President Kamala Harris speaks during an event marking the ninth anniversary of the creation of the Deferred Action for Childhood Arrivals program on June 15, 2021, in Washington, D.C.
Photo: Win McNamee/Getty Images

Beyond declaring the process President Barack Obama used to create the program unlawful, Texas judge Andrew Hanen suggested the initiative itself conflicted with immigration law, raising doubts about its overall future even as the Biden administration and congressional Democrats work to preserve it.

Companies and organizations that employ DACA-status beneficiaries and the individuals themselves already deal with significant uncertainty because the protections are only granted in two-year increments. Hanen’s ruling—which left open the possibility that he would revisit the status of current DACA beneficiaries—only adds to this uncertainty, said Jorge Loweree, policy director at the American Immigration Council, a nonprofit advocacy group.

Employers “won’t know if an employee who is a DACA recipient will be able to continue working for them for an extended period of time,” he said.

Biden Says U.S. to Appeal Dreamers Ruling and Congress Must Act

As of June 2020, more than 400,000 DACA recipients were working in the U.S., according to estimates compiled by the Migration Policy Institute, an immigration-focused think tank. More than a quarter were in California and about one in six were in Texas.

More than 140,000 of them work in food-related industries, while another 29,000 hold front-line health-care jobs and nearly 15,000 are teachers, the left-leaning Center for American Progress estimated in 2020.

In general DACA recipients’ employment should be fine, but “you may have employers who may be reticent to keep on or maybe advance or promote someone that is on DACA, for fear that they may not be here in the future,” said Jose Magaña-Salgado, director of policy and communications at the Presidents’ Alliance on Higher Education and Immigration, a nonprofit group of U.S. college and university leaders. “We’ve seen employment discrimination in that context.”

That doesn’t mean employers can simply discriminate against employees based on their work status, however. Asked whether he believes there could be an uptick in litigation over discrimination against workers with DACA status, he said, “We likely expect a steady stream.”

First-Time Applicants

The ruling most directly affects the more than 55,000 people whose pending initial applications were effectively frozen by Hanen. President Joe Biden has said his administration will appeal.

“All of those people are still in limbo at this point. None of them are able to apply. So that’s future workers that employers won’t be able to employ,” said Greg Siskind, a founding partner at Siskind Susser PC.

This new limbo follows years of stress under the Trump administration, putting first-time applicants “on quite a seesaw,” said Julia Gelatt, a senior policy analyst at the Migration Policy Institute.

President Donald Trump sought to end DACA in 2017 but was blocked by federal courts and ultimately the Supreme Court, which rejected his administration’s method of rescinding it. More than 140 businesses and trade groups—including SpaceX, Ernst & Young LLP, Ben & Jerry’s Homemade Inc., and the U.S. Chamber of Commerce—filed a friend-of-the-court brief backing the program.

In 2020, Chad Wolf, then-acting homeland security secretary, issued a memo suspending new applications, only to be rebuffed by a federal judge.

First-time applicants—not just young people who’ve aged into the program, but people who weren’t previously aware of it or couldn’t afford the fees—will likely enter the black market without employment authorization, said David Bier, a research fellow at the libertarian Cato Institute think tank who focuses on immigration.

“Many of them can bide their time for a few years by staying in school and going to college,” Bier said. But for others, he added, “to the extent that they are going to want to support themselves and their families, they’re going to seek out informal work arrangements or use identification borrowed from friends and family in order to work in the United States.”

To contact the reporters on this story: Lydia O'Neal in Washington at loneal@bloombergtax.com; Ellen M. Gilmer in Washington at egilmer@bloombergindustry.com

To contact the editors responsible for this story: Andrew Harris at aharris@bloomberglaw.com; Sarah Babbage at sbabbage@bgov.com

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