Plan to Grant Work Authorization to Millions Remains on Hold After Supreme Court Denies Request for Rehearing

On the first day of its new term, the United States Supreme Court sidestepped another opportunity to determine the constitutionality of President Obama’s executive immigration reforms.  On October 3, 2016, the Court denied the government's request for a rehearing in United States v. Texas, upholding an injunction against the administration's ambitious program to provide work authorization to millions of individuals living in the United States without lawful immigration status. 

Announced in November 2014, the Deferred Action for Parental Accountability or DAPA, was to provide work authorization to parents of United States citizens or lawful permanent residents. DAPA was modeled after the administration's Deferred Action for Childhood Arrivals (DACA), which provided work authorization to approximately one million individuals. 

In February 2015, Texas and 25 other states sued in Texas federal court over the constitutionality of the program.  The district court enjoined President Obama’s program, and the United States Court of Appeals for the Fifth Circuit subsequently upheld the injunction.  This past June, the Fifth Circuit’s decision remained in place after the Supreme Court split in a 4-4 decision on the injunction. 

The Supreme Court denied the government’s request for rehearing in a routine order, without providing any reasoning.  It appears the injunction will remain in place until the lower courts rule on the constitutionality of the administration’s initiatives.  It may be some time before the issue is resolved.

Although the future of DAPA remains unclear, employers should ensure they remain fully compliant with all federal and applicable state employment eligibility verification requirements.  It is also important for employers to ensure they have reliable steps in place to re-verify the employment authorization of employees who received authorization prior to the injunction, as it is unlikely these employees will gain renewed work authorization.  These steps continue to be important given Immigration and Customs Enforcement (“ICE”) efforts to audit and penalize employers that fail to comply with federal Form I-9 requirements or knowingly hire or continue to employ individuals without work authorization, temporary or otherwise.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.