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President Obama's recent deferred action directive is on hold for now. A federal judge in Texas granted a temporary injunction requested by 26 states, halting a potential grant of work authorization to as many as five million individuals who lacked lawful status. The administration's Deferred Action for Parental Accountability or DAPA is designed to provide work authorization to parents of United States citizens or lawful permanent residents. DAPA is modeled after the administration's Deferred Action for Childhood Arrivals (DACA) which has provided work authorization to close to one million individuals. U.S. Citizenship and Immigration Services claimed this week to have granted as many as one hundred thousand DAPA applications before the injunction.
In a 123-page opinion, U.S. District Judge Hanen of the Southern District of Texas explained why DAPA must be enjoined until a final determination on its legality is made. DAPA, despite the popular public conception, is not an executive order; it is instead an internal agency directive. The Department of Homeland Security (DHS) also characterizes DAPA as a fluid, discretionary directive and not a formal regulation. Since DAPA allows DHS to exercise discretion, DHS claims it is not subject to the notice and comment period requirements governing the regulation making process in the Administrative Procedures Act (APA).
Judge Hanen disagreed with DHS's characterization of the directive. According to Judge Hanen, DAPA requires the agency to bestow discrete benefits on a defined class of people. In other words, DAPA looks like legislation—not a discretionary policy. Since DAPA makes substantive changes in immigration law, Judge Hanen sided with the states, reasoning any policy that grants a benefit and changes the immigration status of a class of at least four million individuals should at least be subject to the APA as other regulations are. Otherwise, the states would be forced to bear substantial costs for a policy enacted by agency fiat without notice and a period for comments. The opinion leaves open whether DAPA is an unlawful intrusion on the legislative power.
The federal government has asked Judge Hanen to reconsider or at least allow USCIS to continue processing applications for DAPA and an extended DACA program until the case is resolved. But for now, DAPA and the DACA extension are on hold. If DAPA eventually goes into full effect, employers across the country will encounter several issues as their employees offer new identities or valid work authorization. Absent a safe harbor provision or other guidance from the government, employers should determine whether, under the relevant state law, the company can terminate the employment relationship based on the prior misrepresentations or will be required to square the new employee identities with the old identities.