A federal appeals court shot down President Barack Obama's Deferred Action for Parents of Americans program, but don't think that, as an employer, the proposal has died just yet. Obama plans on taking DAPA to court, which means the work permits included in the proposed plan could be distributed before the president's term is up.
DAPA blocked for now, but ruling could be overturned by summer
The proposal would provide work permits for undocumented immigrants who are the parents of children born in America, and thus citizens. However, due to a lack of public notice prior to the executive action, the federal appeals court shut down DAPA and, as a result, at the very least delayed the distribution of these permits. It has been close to a year since Obama announced the executive action designed to help undocumented parents of U.S. citizens remain in the country without fear of deportation. Employers may have forgotten about the proposal, but it is important to remember that it is not history yet and that a substantial number of non-citizens could enter the workforce before Obama's term is up, should a higher court rule that his proposal is constitutional.
"Discrimination stemming from unfair hiring practices is frequent."
This is important because employers seem to have had frequent difficulties in determining what is OK when hiring non-citizens. Discrimination stemming from unfair hiring practices is a frequent complaint. It came up many times in October when the Department of Justice reached settlements with a school district, taxicab companies and a delivery and logistics firm, among other employers, as a result of their unfair hiring practices. More specifically, the lawsuits all stemmed from citizenship status discrimination, a violation of the Immigration and Nationality Act.
Education is one way to avoid potential INA violations
Employers often find themselves stuck in litigation with the DOJ after asking non-citizens to provide specific documents in the background verification process for the Form I-9, something that is not allowed under the INA. All new hires, whether citizens or not, must be treated similarly as long as they are legally authorized to work in the U.S. With DAPA still alive, and now headed to the Supreme Court, it is important for employers to be aware of this as a significant number of non-citizens could enter the workforce if the Supreme Court rules that the president's proposal is constitutional.
The hope in the Obama administration is that the Supreme Court will start reviewing the case in the spring and issue a ruling by June. In case the appeals court's ruling is overturned, and DAPA is implemented this summer, it may behoove employers to educate their staffs on the INA and the hiring of non-citizens prior to the summer to ensure they are prepared. Employers who violate the INA could face fines in the tens or even hundreds of thousands of dollars range.