The U.S. Supreme Court has agreed to decide whether the Trump administration’s termination of the Deferred Action for Childhood Arrivals program was lawful. The DACA program provides temporary protection from deportation for undocumented individuals who were brought to the U.S. as children. Approximately 700,000 “Dreamers” have benefited from the program, which includes eligibility to apply for two-year renewable employment authorization documents.

The Trump administration announced in September 2017 that it would eliminate the program as of March 2018. Lawsuits immediately challenged the decision, arguing that the announcement terminating the program ran afoul of rulemaking procedures required by the Administrative Procedure Act and violated the Constitution’s due process and equal protection provisions.

Two federal appeals courts have ruled against the government, requiring the Department of Homeland Security to continue to renew DACA applications for current recipients while the litigation progresses. The rulings do not require DHS to accept new applicants.

When the administration terminated the program in 2017, it suggested that the then-Republican-controlled Congress would find a permanent fix for Dreamers, but efforts have repeatedly failed in the past two years. Earlier this month, the now Democratically controlled House passed the American Dream and Promise Act of 2019, which would provide 10-year conditional green cards to Dreamers and a path to permanent residency and citizenship thereafter. The bill has not been put to a vote in the Senate, where its prospects remain uncertain.

The Supreme Court has repeatedly declined the government’s request to expedite the case. The court will hear arguments next term, which begins Oct. 7, and a decision may come as early as next spring.

BAL Analysis: Business leaders represented by the Coalition for the American Dream reacted to the court’s decision to take up the case by urging the Senate to find “a bipartisan path forward” and pass legislation to permanently protect Dreamers. The organization issued a statement citing overwhelming public support of Dreamers and economic research on the significant negative impact to job creation and the American economy if Congress fails to act. The Supreme Court’s decision to hear the case does not change the current status of the DACA program, in which DHS is required by court order to renew documentation for current DACA enrollees. Employers should continue to accept valid employment authorization documents from these individuals.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact

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