It has now been 1.5 years since President Biden took office and the DACA program just passed its 10-year anniversary on June 15, 2022, and yet Congress has failed to deliver any solution to help DACA recipients permanently legalize their immigration status. While President Biden had proposed comprehensive immigration reform at the beginning of his term, Congress appears to be less and less inclined to pass it given the upcoming elections. Since there are now only 2.5 years left in the Biden administration, and given the uncertain future of the DACA program under a different administration, now is the time to explore whether the employment-based green card option can help you obtain permanent residency in the U.S.
While many DACA recipients may not be eligible because of the ways that our immigration laws are written, there are 3 categories of DACA recipients that may be eligible and should explore the possibility of getting a green card through their employer.
INA 245(i) permits certain individuals to file a green card in the US, and to avoid consular processing and triggering the 3 or 10-year bar, if the individual entered the U.S. without inspection (EWI) or otherwise violated the terms of their status. To qualify, someone must have filed an immigrant petition (I-130 or I-140) or labor certification (Form ETA-750) for them, their spouse, or their parent by April 31, 2001. Since DACA recipients are mostly young, it’s unlikely that someone would have sponsored them directly by that date, but it’s possible that someone would have sponsored their spouse or parent. It’s important to talk to your spouse and parents to discuss their own immigration history and determine if anyone ever sponsored them, regardless of whether or not they ultimately received their green card through such sponsorship. So long as the sponsorship was “properly filed” and “approvable when filed,” along with other requirements, the DACA beneficiary may nevertheless qualify for 245(i) even if the green card process was later abandoned or even denied.
Individuals who are not eligible for 245(i) must consular process their green card at the U.S. Consulate abroad, but will trigger a 3 or 10-year bar on returning to the U.S. if they have more than 6 months of unlawful presence in the U.S. This means that those who have less than 6 months of unlawful presence in the U.S. after their 18th birthday do not trigger a 3 or 10-year bar and are not prohibited from returning to the U.S. after attending their consular interview abroad.
This means that those who got DACA before they turned 18 and have timely renewed it since may not have 6 months or more of unlawful presence. Periods of time with DACA approval does not count as having unlawful presence, but the time that a DACA is pending may count as unlawful presence if there are gaps between approvals after the person’s 18th birthday. It’s important to point out though that in light of the fact that the U.S. Supreme Court may cancel DACA, there’s the possibility that the individual may accrue more unlawful presence in the near future after DACA is cancelled.
Finally, those individuals who entered the U.S. on a J-1, J-2, F-1 or F-2 visa as students and exchange visitors (or their children or spouse) were admitted to the U.S. for Duration of Status (D/S) which does not have a set expiration and does not generally accrue unlawful presence, assuming the person has not since changed their status to a different status (not counting DACA). In that case, if the person last entered in J or F status and did not change their status (except for DACA), they are also not accruing any unlawful presence and would not trigger a 3- or 10-year bar for consular processing.
Finally, individuals who have more than 6 months of unlawful presence after turning 18 and would trigger a 3 or 10-year bar upon departure, may still benefit from an employment-based green card process if they have a qualifying relative to waive the 3 or 10-year bar. The INA permits waiving a 3 or 10-year bar by demonstrating extreme hardship to certain family members in the U.S.:
Practically speaking, a DACA recipient with a U.S. citizen spouse will likely proceed with a marriage-based case through the consulate and not pursue an employment-based case, which typically takes longer. But, those who only have a U.S. citizen or Permanent Resident (LPR) parent or Permanent Resident (LPR) spouse may still find it more beneficial to consider the employment-based option, which may be faster than the long preference-based family immigration system, which sometimes takes decades, depending on where the person was born. These individuals can be sponsored for their green card by their employer but use their relative only for purposes of filing the waiver to waive the 3- or 10-year bar before departing the U.S. for their consular interview.
In summary, if you have DACA, you should consider an employment-based green card if:
While each case is different and there are a variety of ways of getting a green card through employment (e.g., EB-1, EB-2, EB-3, EB-4 and EB-5), the process typically takes at least a few years, depending on the method pursued and the country of birth of the employee. Given the timing involved, DACA beneficiaries should explore these options now, at a time when the DACA program is not yet in jeopardy and when their employment authorization is still intact. Please contact an experienced attorney at Minsky, McCormick & Hallagan, P.C. if you have DACA and would like to evaluate whether you are eligible for an employment-based green card, or if you are an employer with a DACA employee and are interested in sponsoring them for a green card. Our office has successfully assisted DACA recipients in getting green cards through employment.
The material contained in this alert does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
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