USCIS to Issue Guidance to Employers of DACAs Stripped of Their Documents by Injunction

By Dan Cadman on August 10, 2015

When the administration initiated its extra-statutory "Deferred Action for Childhood Arrivals", which includes anyone who arrived prior to the age of 18, and many of whom are now well into their 30s, it also began a regimen of issuing employment authorization documents (EADs) as well as documents to establish that the recipients are — at least for the duration of the program — lawfully present in the United States. Each EAD's period of authorization was designed to mirror the program benefits: three years at a time, renewable thereafter.

To accompany these EADs, the immigration benefits-granting agency, U.S. Citizenship and Immigration Services (USCIS) also issued guidance to employers as to how they should go about complying with the employer verification laws and preparing I-9 forms for individuals presenting themselves for jobs using the documents.

The administration's plans were thrown into chaos when a federal judge in Texas issued an injunction against the expansion of DACA, and other proposed benefits programs that would have given an additional five million-plus illegal aliens similar status and work authority. (Regrettably, the judge left the administration's dismantling of the law enforcement functions, exercised through the abuse of "prosecutorial discretion" guidance, untouched.)

Things got worse for the agency when the federal Fifth Circuit Court of Appeals left the injunction in place.

They got even dicier when the judge who issued the injunction discovered he had been misled when told that no renewals of DACA status or EADs had been issued subsequent to his order — in fact thousands had gone out in the mail. He then scheduled a hearing to show cause why he should not hold senior governmental officials at USCIS, at its parent Department of Homeland Security, and at its sibling agencies Customs and Border Protection and Immigration and Customs Enforcement, in contempt of court.

It was only then that USCIS got off its haunches and actually began taking steps to nullify and retrieve the post-injunction documents it had issued.

The website Law360, a daily compendium of items of interest to the private immigration bar, is now reporting that USCIS has announced it will shortly be updating its guidance to employers of those aliens whose DACA extensions have been revoked.

It will be most interesting to watch that development, and to see whether USCIS will require employers to hew to the letter of the law, which is pretty clear — no lawful status and no EADs equals no work authority — or whether the administration will still try to find ways around the clear purpose of the court injunction: to halt these executive action programs of a lawless administration, programs that have no place under either the Constitution or the statutes of the United States.

I'm not a betting man, but if I were, I'd put my money on the strong possibility of more fireworks. Perpetually and arrogantly believing in the manifest "rightness" of all they say and do, no matter how absurd, the leaders of this administration just don't seem to comprehend that in our tripartite system of government, the judicial branch can, and has begun to, undo their programs-by-fiat.