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Federal Government Dragging Its Feet On DACA

On June 18, 2020, the U.S. Supreme Court ruled against the federal government’s attempt to end the Deferred Action for Childhood Arrivals (DACA) program, stating that the administration had not articulated an appropriate reason to end it. In spite of the ruling, however, the federal government refused to accept new DACA applications or renewals until mid-July, and has provided little to no guidance on when or how to apply. This is uncharted waters in terms of legal repercussions, but it is relevant to keep in mind that the administration’s failure to act might plausibly be grounds for filing a charge under employment discrimination laws in the future.

No Permanent Status

The DACA program was started in 2012 under the Obama administration, intending to offer temporary immigration relief to those who came to the United States as children—those entering without inspection, but also without any intent to commit immigration violations. DACA does not confer any kind of visa or permanent status; rather it requests what is called prosecutorial discretion, which is essentially the ability to decide whether charges should be filed. It also allows applicants to request employment authorization, and makes employment a tenet of receiving DACA in the first place unless someone is still in school.

Given that undocumented immigrants and DACA recipients are generally not eligible for Social Security or most other public benefits, working is a must, whether with or without authorization. DACA’s employment authorizations are a lifeline for many, and the federal government’s failure to accept or adjudicate new DACA claims even in the face of a binding court resolution puts people in precarious positions, though there are few resources for those who are denied as of this writing.

Employment Discrimination Is Rampant

Even before the federal government’s recent obstructionism, employment discrimination against DACA recipients has been quite common. For example, employers have been known to refuse to hire those with DACA because their employment authorizations would expire in the future at a definite date. This refusal is usually couched under another plausible reason, but U.S. jurisprudence prohibits not only discrimination on its face, but also what is called de jure discrimination—discrimination in practice. If there is evidence suggesting discriminatory behavior, your employer can still be held accountable.

Your employer may claim they are trying to “wait and see” given that as of July 17, U.S. Citizenship & Immigration Services (USCIS) has stated they intend to “review” the legality of the DACA program, rejecting all new applications, and granting renewals only for 1 year rather than 2. Employment authorizations will still be granted for those renewals that get through, but the mere nature of the administration’s “review” can imply that far fewer will be granted. It is easy to be concerned that unethical employers will use these difficulties as reasons to continue to deny immigrant workers the chance to work.

Call A South Carolina Employment Law Attorney

While the federal government continues to delay and equivocate, having someone who can advocate for you on a local level is important. The Charleston employment discrimination lawyers at the firm of Hitchcock & Potts have been handling these types of cases for many years. Attorney A. Christopher Potts is ready to assist you—contact our offices today to schedule a consultation.

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