Dear Sophie: What’s the latest on DACA?

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,

My company is looking to hire a very talented data infrastructure engineer who is undocumented. She has never applied for DACA before.

What is the latest on DACA? What can we do to support her?

—Multicultural in Milpitas

Dear Multicultural,

Thank you for your questions and for supporting your prospective new Dreamer hire in her effort to obtain Deferred Action for Childhood Arrivals (DACA). Take a listen to the podcast episode in which my colleagues Anita Koumriqian, my law partner who is an expert in family immigration law, and Cori Farooqi, an associate attorney in our family immigration team, provide an update on all things DACA.

What’s the latest on DACA?

In good news for many in the United States, the DACA program has largely returned to what it was when the Obama administration created it through an executive order in 2012. At the end of last year, a federal judge ordered U.S. Citizenship and Immigration Services (USCIS) to accept and adjudicate new DACA applications, which had stopped in September 2017 when the previous administration announced it was ending DACA.

Moreover, President Joe Biden issued a memorandum on his first day in office stating that the secretary of Homeland Security, who oversees USCIS, should “fortify and preserve DACA.”

Your company can support an undocumented engineer by offering to pay for the services of an immigration attorney to assist her with filing applications for DACA and an employment authorization document (EAD), also known as a work permit. It may take several months for her applications to be processed. The approvals will allow her to be legally hired in the United States.

What are the DACA requirements?

To be eligible for DACA and a work permit under DACA, she must have:

• Been under 31 years of age on June 15, 2012.
• Come to the U.S. before her 16th birthday.
• Lived continuously in the U.S. since June 15, 2007.
• Graduated high school, obtained a GED, or been honorably discharged.
• No convictions of a felony or significant misdemeanor or three or less other misdemeanors.

Once the engineer receives DACA status and a work permit, which is usually valid for two years and can probably be renewed, your company can hire her. To continue to support her and other Dreamers at your company, consider:

• Offering continued legal support.
• Issuing reminders to renew DACA status and work permit.
• Pressing Congress to enact the Biden administration’s proposed immigration reform legislation that would, among other things, provide a path to citizenship for DACA recipients.
• Sponsoring her and other DACA recipients for a green card.

What’s in the immigration reform legislation?

The Biden administration pressed Congress to enact immigration reform legislation that provides a path to citizenship for Dreamers by first giving them conditional permanent resident (CPR) status. Individuals with CPR status can obtain legal permanent resident (LPR) status — otherwise known as a green card — if they meet one of the following:

• Obtained a degree from a U.S. university or completed at least two years in a U.S. bachelor’s degree or higher degree program.
• Completed at least two years of military service and continued to serve or was honorably discharged.
• Has worked for three years and at least 75% of that time was under an EAD.
• Qualifies for a hardship waiver.

In this proposal, individuals would be eligible to apply for citizenship through naturalization after five years as a green card holder.

The House already passed its version of the bill, the Dream and Promise Act of 2021, in March. The Senate has yet to take up its version of the bill, the Dream Act of 2021.

Want to sponsor a Dreamer for a green card?

If your company wants to help the engineer achieve long-term security and stability, consider sponsoring her for permanent residence (a green card) after she gets DACA status. Establishing a company green card policy would offer an attractive recruitment and retention tool for all international talent.

Sponsoring a Dreamer for a green card is a complex process, so I suggest working with an experienced immigration lawyer. I discussed the process in more detail in a previous “Dear Sophie” column. A few employer-sponsored green cards require employers to obtain a labor certification from the U.S. Department of Labor before submitting a green card petition on behalf of an employee. The labor certification 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.
• 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 more stringent requirements:

• EB-1A green card for individuals with extraordinary ability.
• 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 whose work benefits the U.S.

Another way your company can support your employees is to offer legal and financial support if they’re pursuing marriage-based green cards. Marriage-based green cards offer a quicker and less expensive option compared to an employer-sponsored green card, as long as it is based on a good-faith marriage.

Thanks again for supporting Dreamers!

Best regards,

Sophie

Have a question for Sophie? 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. You can contact Sophie directly at Alcorn Immigration Law.

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