The U.S. Department of Homeland Security has announced that it will terminate the humanitarian parole programs for nationals of Cuba, Haiti, Nicaragua, and Venezuela. The termination will take effect 30 days after today’s publication of the official notice in the Federal Register.
That means approximately 530,000 individuals could lose their legal status and employment authorization as early as April 24, regardless of the expiration date on their current documentation.
As a result of the termination, employers could have difficulty identifying affected employees because of the broad use of the C11 category code for various parole programs. The C11 category code is used for the individuals affected by the revocation but also for individuals in other categories that are not being terminated.
In addition, employers face a legal “Catch-22.”
Legal challenges
At least one lawsuit is challenging the termination of the program. In Doe v. Noem, the plaintiffs contend that the termination violates their due process rights and have asked the court to issue a preliminary injunction, which would temporarily block the termination from taking effect.
Challenges for employers
Identifying affected employees will be burdensome for employers, particularly large ones. The C11 category on Employment Authorization Documents applies to all public interest parolees, making it difficult to distinguish the affected individuals from others, such as Afghan and Ukrainian humanitarian parolees. Employers who wish to identify affected employees and who retain copies of I-9 documents will be required to conduct a manual review.
And here is the Catch-22: An employer who mistakenly takes adverse action against an employee who is not subject to the termination could be the target of a claim for wrongful termination or discrimination. On the other hand, failure to properly reverify and remove unauthorized workers could result in I-9 compliance violations.
Next steps for employers
- Audit yourself. Employers should review their I-9 records and Employment Authorization Documents to assess potential impact.
- Create a plan. Establish a process for verifying continued work authorization and notifying affected employees.
- Communicate with affected employees. Go ahead now, and inform employees about the changes and their potential impact.
- Stay up to date. The DHS may issue further clarifications regarding employer obligations. Continue to follow DHS developments and any legal challenges to the termination.
- Consult with counsel. Given the complexity and potential liabilities, employers should consult with their immigration counsel.
We will continue to monitor developments and provide updates as more information becomes available.
For further guidance, please contact any member of Constangy’s Immigration Practice Group.