Dear Sophie: What does the Supreme Court’s DACA decision mean for employers?

Here’s another edition of “Dear Sophie,” the advice column that answers immigration-related questions about working at technology companies.

“Your questions are vital to the spread of knowledge that allows people all over the world to rise above borders and pursue their dreams,” says Sophie Alcorn, a Silicon Valley immigration attorney. “Whether you’re in people ops, a founder or seeking a job in Silicon Valley, I would love to answer your questions in my next column.”

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Dear Sophie:

I work in HR at a big tech company. We have hundreds of DACA employees. What does the recent Supreme Court decision mean for recruitment and retention? How can we support these brilliant colleagues to have immigration security?

—Supportive in Silicon Valley

Dear Supportive,

Thank you for your timely question. I’m thrilled the Supreme Court ruling allows the Deferred Action for Childhood Arrivals (DACA) program to continue — at least for now. Dreamers have become integral to the vibrancy and vitality of our economy and way of life in the U.S, particularly in Silicon Valley. I’m heartened that you’re looking for ways to support and bring a sense of security to these brilliant and talented individuals.

For more information about last week’s Supreme Court decision, check out my podcast page. A podcast on the matter will be posted tomorrow.

The Supreme Court’s ruling that the Trump administration illegally ended the DACA program by failing to provide a “reasoned explanation” for doing so means U.S. Citizenship and Immigration Services (USCIS) will be required to:

• Continue processing DACA renewal requests.
• Continue renewing employment authorization applications for DACA recipients.
• Allow individuals whose previous DACA status expired one year ago or less to file a renewal request.
• Allow individuals whose previous DACA status was terminated at any point or expired more than one year ago to file a new DACA request.
• Enable individuals who have not previously been granted DACA to apply for such status.
• Enable DACA recipients to apply for permission to travel outside the U.S. (advance parole).

The Trump administration ended the DACA program on Sept. 5, 2017. Several lawsuits were filed challenging the administration’s action, and several courts issued orders directing the government to partially maintain the program by allowing DACA recipients to continue to renew their status and employment authorization (work permits). However, USCIS stopped accepting new DACA applications, renewals for lapsed DACA status and advance parole applications.

So for now, USCIS must resume the DACA program as it was originally put in place by the Obama administration in 2012. This means your company’s ability to recruit and retain Dreamers has largely returned to the way things were. However, the DACA program remains in jeopardy: The administration already announced that it would follow the procedures to end DACA.

If your company wants to help Dreamers achieve long-term security and stability, consider sponsoring them for permanent residence (a green card). Establishing a company green card policy would offer an attractive recruitment and retention tool for not only Dreamers but for all international talent. Given the current challenges to getting temporary visas and extensions approved, sponsoring employees for green cards could offer a timely and cost-effective alternative.

Sponsoring a Dreamer for a green card is intricate and complex, so I suggest working with an experienced immigration lawyer. Your employee might need to be separately eligible for a family-based waiver of grounds of inadmissibility along with a green card petition to sponsor a Dreamer. To be eligible for DACA, an individual must have lived in the U.S for five years and therefore accumulated at least five years of unlawful presence in the U.S.

One of the reasons for this is that the U.S. deals severe consequences to individuals who are unlawfully present, which means spending time in the U.S. without a valid visa, green card or other permission. An individual who has been in the U.S. without permission for more than 180 days, but less than one year is barred from reentering the U.S. for three years. An individual who accrues one year or more of unlawful presence is barred for 10 years. And an individual who lived in the U.S. unlawfully for more than a year, left the U.S., or was deported, and then returned will be permanently barred from the U.S. That’s why the waiver is needed so that if the person has to leave the U.S. to obtain a green card, they are not subject to the bar.

However, if the administration begins issuing “advance parole” again to Dreamers then it may be legally permissible for them to leave the U.S., reenter, be considered to have a “valid admission” to the States, and then be eligible to adjust status by filing an I-485 green card application without an I-601 waiver once it’s their turn in line after a green card petition has been filed. This is something to potentially explore separately on a case-by-case basis with each team member.

There are a host of employer-sponsored green cards that a Dreamer may be eligible for. A few green cards require employers to obtain labor certification from the U.S. Department of Labor before submitting a green card petition. Labor certification (or PERM) requires an employer to prove that no minimally qualified U.S. worker is available for the position by going through an extensive recruitment process. The process is designed to ensure that U.S. workers are not displaced and the employment, wages and working conditions of U.S. workers in similar positions are not adversely affected. The green card options that require labor certification are:

• EB-2 Green Card for individuals with a master’s degree or higher in a field related to the position.
• EB-2 Green Card for individuals with exceptional ability in the sciences, arts or business.
• EB-3 Green Card for skilled professionals with at least a bachelor’s degree and two years of training or work experience.

These green card options do not require labor certification but have higher bars for approval:

• EB-1A Green Card for individuals with extraordinary ability in the sciences, arts, education, business or athletics.
• EB-1B Green Card for outstanding professors and researchers.
• EB-1C Green Card for an executive or manager to come to the U.S. to live and work.
• EB-2 NIW (National Interest Waiver) Green Card for individuals with exceptional ability in the sciences, arts or business whose work benefits the U.S.

Another way your company can support your Dreamer employees in getting a green card is to offer legal support if they’re pursuing marriage-based green cards (marriage to a U.S. citizen) or F2A green cards for spouses.

In the meantime, your company can remind Dreamer employees to renew their DACA status and work permit and provide legal support if they need it. Your company could also take a stand and publicly support Dreamers and pressure Congress to enact legislation that would give them a path to citizenship.

Remember, together we can create the world we want to see. Thank you for supporting Dreamers!

—Sophie

Have a question? Ask it here. We reserve the right to edit your submission for clarity and/or space. The information provided in “Dear Sophie” is general information and not legal advice. For more information on the limitations of “Dear Sophie,” please view our full disclaimer here. You can contact Sophie directly at Alcorn Immigration Law.

Sophie’s podcast, Immigration Law for Tech Startups, is available on all major podcast platforms. If you’d like to be a guest, she’s accepting applications!