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DACA Beneficiaries May be Eligible for an H-1B

Posted January 25, 2019H-1B

Due to the uncertainty of DACA, employers should consider other nonimmigrant options for certain employee Dreamers, in particular sponsorship for H-1B. The Supreme Court appears unlikely to hear the case on Deferred Action for Childhood Arrivals (DACA) this term. On February 15, 2019 the Supreme Court will meet again to decide which cases it will hear in October. Even if the court accepts to hear the case in October, the decision regarding the program will likely not be announced until 2020. However, given the long-term uncertainty surrounding the program we encourage employers to be proactive in considering all options available to DACA employees.

H-1B status could be available to some DACA beneficiaries (“Dreamers”) if they meet eligibility for the visa. Namely, employees must have earned at least a bachelor’s degree, have a job offer, and have less than 6 months of unlawful presence (since their last entry). In addition, in order to eventually enter the US in H-1B status, DACA beneficiaries must have also entered the country legally, using a tourist visa or advance parole.

The job offer must require a bachelor’s degree in a particular field and that degree requirement must be common to the job. Most Dreamers who might be eligible for the H-1B must have also had DACA by the time they were 18.5 years old. All Dreamers have unauthorized presence, which is different from unlawful presence. Unlawful presence accrues as soon as the Dreamer turns 18 years old, which is why if they were 18.5 years old or older when they obtained DACA, they are ineligible for an H-1B. Eligible Dreamers must also note that they will not be able to change their status. Dreamers are not eligible to change status because they do not have a status. This means that if the H-1B is approved, the Dreamer will have to consular process and enter the U.S. with his/her H-1B visa.

All Dreamers should renew their DACA before February 15, 2019. Unfortunately, USCIS is not accepting new applicants for DACA at this time. If you have any questions, please reach out to any of the Meltzer Hellrung attorneys.