Despite a major win in the Supreme Court, which ruled on June 18 that the Trump administration improperly terminated the Deferred Action for Childhood Arrivals (DACA) program, Dreamers remain in limbo, their fate closely tied to the election that is two months away.

There are an estimated 800,000 Dreamers, and about 90% are working for U.S. employers. More than 100 leading U.S. companies have publicly urged the president to keep DACA in place, warning that ending the program would jeopardize the economic recovery from COVID-19. With nearly 30,000 Dreamers working in medical professions, terminating DACA would also, as they argued before the Court, harm the healthcare response and medical research related to COVID-19.

The Department of Homeland Security responded to its Supreme Court defeat by first issuing a memorandum on July 28 that stated it would continue to accept only renewal DACA applications from those who are already DACA beneficiaries, not initial applications from first-time applicants—the same arrangement that has been in place by court order since 2018 when the legal challenges began. Then last week, the government released further guidance confirming that it would continue to process renewal applications only, and will limit renewals to one-year employment authorization documents instead of the usual two-year duration.

The DHS response not only flies in the face of the Supreme Court ruling, it puts Dreamers in an even more uncertain situation, since up until the ruling, DHS was under court injunctions to keep the status quo in place, which meant issuing renewals for the normal two-year period. DHS appears to buying time while the government decides its next move. It remains to be seen how courts will view the July 28 memo, which is now the subject of multiple lawsuits.

Meanwhile, some Dreamers report that they are being turned away from jobs because of the uncertainty of DACA’s future. In this unsettled environment, employers need to make sure that they are not violating the anti-discrimination provisions of the Immigration and Nationality Act or employment law provisions by treating DACA recipients differently than others with valid work authorization.

Shortly after the Supreme Court ruling, President Trump said his administration would begin the process of terminating DACA again. DHS could take action to terminate DACA at any time. This is because the legal issue has never been whether the administration had the authority to terminate DACA—all courts have agreed that it does—only whether it followed proper procedures and provided a reasoned analysis to support its actions. If Trump gets a second term, there’s little doubt his administration would attempt to terminate DACA again—only this time, like the Muslim bans that took more than one version to correct their legal flaws, DACA’s termination would likely be upheld.

Guillermo Ortiz is a Senior Associate in the Dallas office of Berry Appleman & Leiden LLP.

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