President Barack Obama’s executive actions on immigration were not upheld by the U.S. Supreme Court. Some of your employees are probably disappointed and unsure of how to move forward. The disappointment they are experiencing and displaying doesn’t mean they are undocumented workers, and you shouldn’t assume they are. Here are some insights for employers in the wake of the Court’s recent decision. 
Background on DACA+ and DAPA
November 20, 2014, was a day of celebration for families who had been living and working in the United States when President Obama announced the executive actions that would expand Deferred Action for Childhood Arrivals (DACA+) and create a new program, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). These two programs gave them the ability to legally work without the fear of deportation as long as they met the eligibility requirements. That celebration was short-lived.
On February 16, 2015, a federal judge in Texas blocked DACA+ and DAPA by ordering a nationwide injunction, meaning the programs could not be implemented. The 5th Circuit reaffirmed the decision on November 9, 2015. Then, on January 19, 2016, the Supreme Court decided to hear the case. Justices heard oral arguments on April 18 and made their decision June 23.
Supreme Court ruling
The Supreme Court is generally a panel of nine judges. With the passing of Justice Antonin Scalia on February 13, 2016, there was the chance of this decision being a 4-4 split. An equal split, as we have seen here, means the lower court’s decision is upheld. As it was a 4-4 split, all that was stated in the ruling was, “[t]he judgement is affirmed by an equally divided court.”
This ruling in no way affects the original DACA program, which became effective in 2012. This ruling has disappointed many people, but it will not end immigration reform. Obama stated in his press conference the day the ruling came down: “I think it is heartbreaking for the millions of immigrants who made their lives here, who’ve raised families here, who hoped for the opportunity to work, pay taxes, serve in the military and more fully contribute to this country we all love in a more open way.”
The future of immigration reform will be left to Obama’s successor, Hillary Clinton or Donald Trump. DAPA and DACA+ or programs similar to them taking effect will be determinative on what the next President decides to do regarding immigration reform.
What does this mean for you, the employer?
First and foremost, it’s important to understand that you will have employees who are disappointed in this outcome. Some may be undocumented (employers often aren’t aware of an employee’s true legal status), have a family member who is undocumented, or know someone who is undocumented. Protests may follow in the coming weeks and months, which can be considered a protected activity.
Remember that employees protesting and/or showing support for the executive action doesn’t mean they are undocumented worker. As an employer, there is no way for you to distinguish if an employee is an undocumented worker based on protests because there are many “split status” families in the United States; therefore, your employee could be protesting in support of an undocumented friend or family member. This is an important topic and issue for many people in the country, whether they are of legal status or not.
All of the policies and procedures you put into place in anticipation of full immigration reform should stay intact. This will not be the end of immigration reform. Too many individuals in the U.S. are directly involved.
Immigration compliance
It’s important to continue with immigration law compliance. Your procedures for I-9 verification should not be affected by the Court’s decision. Maintaining a work environment that upholds federal labor laws is vital. The keys are making sure your Form I-9s are completed properly and addressing any issues about an employee’s lack of status that may arise.
Bottom line
Immigration reform is too important of a topic for this to be the end of it. Make sure you maintain your procedures and policies. This topic will come back around, and staying informed will assist you in the future when immigration reform likely makes a return.
If you need assistance in enforcing or writing policies and procedures that align with the current Supreme Court decision and immigration reform, it’s best to contact an experience labor and employment attorney.
Jacob M. Monty of Monty & Ramirez LLP, practices at the intersection of immigration and labor law. He is the managing partner of the Houston firm and may be contacted at jmonty@montyramirezlaw.com.
I do not disagree with the immigration of foreign individuals into the US but I do disagree with those that cross the border illegally or over stay their VISAS. Those illegals that have been in the US for more than 5 years and have not attempted to become legal should be deported regardless of how many children they have that are US citizens. Five years is more than enough time for them to apply and go through the legal process of becoming a citizen and those that do not apply just want to live here to receive benefits from the system that has been setup for the American citizen. Cut off these benefits and the illegals will return home on their own because they do not want to be a citizen of the US to start with. I was glad to hear the SCOTUS tied on this issue and let the lower court decision be upheld. NO AMNESTY FOR ANY ILLEGAL IN THE US!!
People are truely uneducated these days. Our top leaders ask dumb questions, like “whats the reason for the second amendment”………Really? Read history, read the founders reasons for the implimenting the law into the constitution, pretty much answers the question doesnt it? Now we have this imigration case before the court and 4 of them arent smart enough to realize that this type of executive action by the president is indeed ILLEGAL !!!!!
Start putting Employers in jail who hire illegal aliens,that is what should be done !
Did the supreme court get involved when Bush Sr, and Regan gave amnesty to millions of illegal immigrants when they were in office?