Exploring Employment-Based Immigration Options for DACA Recipients

With the future of DACA unclear, understanding all available immigration options for DREAMers is more critical than ever. While humanitarian and family-based forms of relief are often the focus for DREAMers, you may have viable employment-based options that can lead to permanent status in the United States. Here, we delve into the various temporary and permanent employment-based immigration opportunities, with a special focus on the recent Executive Order that can help DACA recipients navigate their journey.

?

?

Temporary Employment-Based Options

H-1B Visa: One of the most common temporary employment-based options is the H-1B visa. This visa allows a U.S. employer to hire a foreign-born worker for a professional-level job requiring at least a bachelor’s degree in a specific field. Some examples of specialty occupations include jobs in science and health care, business, education, engineering, and more.

?

There is an annual cap on H-1B visas of 65,000, with an additional 20,000 for those who earned a master’s degree in the U.S. Certain employers are exempt from this cap, such as nonprofit entities affiliated with or related to institutions of higher education, institutions of higher education, nonprofit research organizations, and government research organizations.

?

Dual Intent and Period of Stay: The H-1B visa is unique in that it allows for dual intent, meaning H-1B employees can pursue permanent residence (a green card) while on this temporary status. When you are first approved for an H-1B visa, you will typically be granted a period of three years to live and work in the U.S. You can extend your H-1B status for another three years, for a total of six years. Those who reach a certain point in their green card process (discussed later) may be able to extend their H-1B beyond the six-year limit.

?

Eligibility Requirements:

• You must have a job offer in a specialty occupation from a U.S. employer.
• You must hold the specific bachelor’s degree required by the specialty occupation, or a combination of education and/or experience that is equivalent to the degree.?
• You must have entered the U.S. lawfully and have less than six months of unlawful presence.
• Additional requirements.

?

For DACA recipients, the lawful entry and presence requirements will likely be the biggest challenge. If you do not meet all the requirements, you may need to leave the U.S. temporarily to complete the H-1B process. This involves attending a visa interview at a consulate abroad. Depending on how much unlawful presence you have, you may trigger the 3- or 10-year unlawful presence bar when you leave, preventing you from returning to the U.S. quickly. We discuss solutions to this problem next.

?

??

Waivers and Advance Parole

D-3 Waiver: This waiver excuses certain grounds of inadmissibility, such as unlawful presence, even if you trigger the three- or ten-year unlawful presence bars. When you attend your visa appointment and the officer determines you are ineligible for a visa because of unlawful presence, you can then request the d3 waiver. If approved, you can re-enter the U.S. with your new visa.

?

Advance Parole: DACA recipients can obtain advance parole, a travel permit allowing them to leave the U.S. temporarily to attend their H-1B visa interview and return. This can be a valuable safety net to ensure your return to the U.S. in the event your H-1B visa is denied. Advance parole can be granted based on humanitarian, educational, or employment reasons. In practice, we have seen applicants successfully receive advance parole to attend their consular interviews by citing humanitarian purpose.

?

Permanent Employment-Based Options

?

Employment-Based Green Cards: DACA recipients on H-1B visas can potentially adjust to lawful permanent resident status (get a green card). The most common employment-based categories are EB-2 and EB-3. The EB-2 category requires an advanced degree or exceptional ability, while EB-3 requires at least a bachelor’s degree.

?

The labor certification process, known as PERM, is a crucial part of most employment-based green card cases. This process can take two to three years, and involves requesting a prevailing wage determination, test of the labor market (recruitment), and filing the labor certification with the Department of Labor.

?

Overcoming Barriers

?

Adjustment of Status (AOS): Under our current immigration laws, individuals inspected and admitted or paroled may adjust status within the U.S. However, DACA recipients will not likely be able to adjust because of unlawful status and/or unauthorized employment.

?

245(i) Adjustment: This provision of the law allows certain individuals who entered the country without inspection or failed to maintain lawful status to adjust their status if they meet certain criteria. To qualify for adjustment of status under 245(i), you must be the beneficiary of a visa petition (I-130, I-140, I-360, I-526) or labor certification (ETA-750) that was “approvable when filed” on or before April 30, 2001. You must also pay a penalty fee along with the normal green card filing fees.

?

245(k) Exemption: This provision of the law allows certain employment-based applicants to adjust status even if they failed to maintain lawful status, engaged in unauthorized employment, or violated the terms and conditions of their nonimmigrant visa. To qualify for the 245(k) exemption, you must be physically present in the United States on the date you file your adjustment of status application pursuant to a lawful admission and you must not have committed the immigration violation for more than an aggregate period of 180 days maximum.

?

Executive Action

On June 18th, 2024, the Biden-Harris administration announced actions to expedite the non-immigrant visa process for U.S. college graduates with job offers. This action aims to ease the employment visa process for DACA recipients and other DREAMers who have graduated from college and have a job offer. This change should provide clear guidance to consular officers when considering recommending approval of the d3 waiver on an expedited basis, in conjunction with the visa application overseas. However, the visa processing steps will remain the same.

?

Conclusion

This article highlights both the opportunities and complexities within the employment-based immigration process for DACA recipients and other DREAMers. Navigating these options requires careful consideration of individual circumstances and consultation with experienced immigration attorneys. At McEntee Law Group , we are committed to helping DREAMers explore all available pathways to secure their future in the United States.

?

If you have any questions or need personalized advice, please contact us. We are here to help you navigate this intricate process and achieve your immigration goals.

?

Thank you for reading and stay tuned for more informative content!