DACA/DAPA Supreme Court Decision

Last week, the Supreme Court announced its ruling in United States v. Texas. The Court’s opinion was one sentence: “The judgment is affirmed by an equally divided Court.” In that one sentence, the justices dealt a major blow to the Obama administration’s immigration plan, reinforced growing uncertainty for many mixed-status families hoping for clarity, and effectively punted immigration reform to next year’s new President and Congress.

The case addressed President Obama's Executive Actions to implement DAPA and extend DACA. Since The Supreme Court was unable to reach a majority decision, the lower court injunction will stand.

10 Things Employers Should Do

Even though the Supreme Court struck down President Obama’s Executive Actions, employers should remain prepared for immigration reform. Official immigration reform is not happening now, but it likely will be addressed in some form in the near future. Now, more than ever, employers should ensure their legal knowledge and compliance. It is important for employers to continue to do these 10 Things, one reason being that the original DACA, implemented in 2012, was not impacted by this Supreme Court decision.

  1. Stay informed. Immigration reform is not gone for good, it is just starting. An informed employer will be better able to assist employees and will lead to a more unified and loyal workforce.
  2. Have a plan for handling New Change Identity Scenarios (NCIS™). The four step NCIS™ protocol is how employers should handle an employee's name change. First, evaluate whether company policies regarding false information on job applications, employee dishonesty, and fraud are flexible enough so that you can retain these employees. Second, prepare and complete a new Form I-9 for the employee, keep the old I-9 and the new I-9 together. Third, document the reason for the employee's new identity. Lastly, inform your employee that they are responsible for complying with applicable tax regulations.
  3. Have a policy regarding no-match letters and protecting innocent bystanders. The Social Security Administration (SSA) issues no-match letters when an employee's name and SSN do not match SSA records. This letter does not necessarily mean the employee is undocumented, as identity theft, reporting errors, and marriages and divorces could cause the no-match. If you do not find a reporting error, inform your employee of the no-match letter and have them verify that the information they provided is correct. If that information is correct give the employee 120 days to rectify the situation with the SSA. Innocent bystanders are individuals who have had their SSN used for employment purposes by an undocumented worker. An innocent bystander might call and say their taxes indicate they worked for your company, when in actuality they did not. Do not ignore this phone call, instead help resolve the issue.
  4. Inform employees about notario fraud. Notarios represent themselves as having legal knowledge, but are not licensed attorneys in the U.S. Keep a list of qualified lawyers that your employees can use.
  5. Implement a policy regarding service letters. Service letters are used for multiple reasons. When enacting a policy keep in mind you do not want to know the reason the employee needs the service letter nor do you want to know to whom it will be addressed. Instead address all service letters to, "To whom it may concern."
  6. Implement a policy regarding company loans. A loan policy can be of great assistance. It will keep employees from having to rely on high-interest loans. Much like service letters, the employer does not want to know why the employee needs the loan, just have the employee verify it is for an exigent or emergency situation.
  7. Understand the influence unions have. Unions will tell employees they are protecting them, but in reality are just trying to increase membership. Discuss unions openly with employees and how being union free better keeps the lines of communication open between employees and employers.
  8. How criminal convictions affect immigration. DACA+ and DAPA are not in effect, but the next program or programs to follow will more than likely have a policy regarding the impact criminal convictions have on immigrant's eligibility to obtain legal work status. Contacting an experienced attorney is the best plan for an employee in this situation.
  9. Continue I-9 compliance. Always keep up with I-9 compliance. This is one of the most important things an employer can do. Properly fill out, maintain, and audit Form I-9s. In California, undocumented individuals may obtain an “AB 60 Driver License” as a form of identification. This document is a valid “List B” document for Form 1-9 purposes.
  10. Maintain pay practices. Ensure your pay policies are compliant with state and federal laws. Attorneys and the Department of Labor (DOL) are reaching out to undocumented workers to ensure they are properly being paid.

Finally, remember that immigration laws and policy will continue to be a major topic well into the next year and employers should continue to remain informed. The original DACA being unaffected by the Supreme Court ruling and California issuing Driver Licenses to undocumented individuals are signs of progress in immigration reform.

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