Court Allows DACA Protections to Continue while Lawsuit is Pending

A federal court judge in Texas has ruled in favor of keeping DACA in place for the time being, denying a request for a preliminary injunction that would have immediately halted DACA protections, but indicating the likelihood that DACA will be held illegal in final rulings.

DACA, or the Deferred Action for Childhood Arrivals program, was established by Executive Order in 2012 and grants protection from deportability and valid work authorization to approximately 800,000 undocumented immigrants who were brought to the U.S. as children.  In September 2017, the Trump Administration announced that it would terminate DACA, spurring multiple lawsuits in federal courts across the country that resulted in rulings requiring DACA protections to continue.  On May 1, 2018, Texas and six other states responded with a lawsuit in the U.S. District Court for the Southern District of Texas challenging the legality of the DACA program itself and asking for a preliminary injunction that would halt DACA while the lawsuit is pending.

In denying the states’ request for a preliminary injunction, the court found that their delay in seeking relief indicated that DACA’s continuation did not cause immediate, irreparable harm to the states, and that implementing a preliminary injunction was against the public interest at this time.

The ruling provides temporary reprieve for the DACA program, however the court’s decision clearly indicates that DACA likely will be found unlawful by the court because the program was established without Congressional legislation, despite being “a popular program and one that Congress should consider saving.”

What Employers and Foreign Nationals Should Expect

Employers should be aware that employees with DACA status may lose work eligibility and/or the ability to remain in the U.S. Employers may also wish to consider working with legislative advocacy partners to support legislation. Foreign nationals with DACA status should consult with immigration counsel to discuss possible alternative immigration options and plan for program termination.

Gibney will continue to closely monitor these developments. For more information on this alert, please contact your designated Gibney representative, or email info@gibney.com.