Former President Barack Obama created in 2012 the Deferred Action for Childhood Arrivals (DACA) program to protect nearly 800,000 undocumented young people from deportation.
The beneficiaries of this program, known as “Dreamers,” are protected from deportation, but they are not granted legal status.
This means that DACA recipients are not able to change status because they have no legal status to begin with. While the future of DACA remains uncertain, Dreamers may be wondering how they might acquire legal immigration status in the United States.
There is a potential path forward for those interested in obtaining an H-1B work visa. In the following guide you’ll learn how to go from DACA to the H-1B:
Boundless can help most DACA recipients who are married to U.S. citizens and entered the United States with a valid visa. Learn more today!
DACA, H-1B and unlawful presence
DACA is available to immigrants up to 31 years of age. Once an immigrant receives DACA, they are not considered “unlawfully present.” Moreover, unlawful presence doesn’t begin to accrue until after a person’s 18th birthday.
What does this mean? If I’m 18 and 4 months old when I become a Dreamer, I have only accrued 4 months of unlawful presence, regardless of when I arrived in the United States. This is important because the H-1B visa has three eligibility criteria that are relevant to your purposes. They are as follows:
- You have earned a bachelor’s degree, at minimum
- You have fewer than 6 months of unlawful presence
- You have been offered a bachelor’s-level position by an employer willing to sponsor you
This means if you were less than 18.5 years old when you became a DACA beneficiary, you could be eligible to obtain an H-1B visa. If, on the other hand, you were 18.5 years or older when receiving DACA, you will not be eligible because you’ve accrued 6 months or more of unlawful presence.
As mentioned above, you must also have a job offer from a sponsoring employee (or alternatively, you must already have a job), and that job must require the skill level of a bachelor’s degree or higher. If you have met these above requirements, you will likely be able to apply for an H-1B visa.
This is where things get tricky. Even if you’ve satisfied the criteria, you still can’t switch your status to H-1B while living in the United States because, as mentioned above, you don’t technically have a status. So what do you do? One option is to apply for an H-1B work visa only once you’ve left the country.
Once out of the country, you can begin the application process. It’s important to note that H-1B is subject to a cap of 65,000 visas per year (and an extra 25,000 for applicants with a master’s degree or higher), which means before applying, you’ll need to submit yourself to a lottery. You can do this by registering an account, during a 14-day window, with U.S. Citizenship and Immigration Services (USCIS). You (or an attorney acting on your behalf) will need to fill out some basic information about you and your employer.
(Note: If your prospective employer is an institution of higher education, a non-profit that collaborates with such an institution, or a government research program, there are no caps. In this case, you do not have to go through a lottery.)
Once registered, you (or your attorney) can monitor your USCIS account to see whether you have been selected to apply.
If you’ve been selected, your employer can then file a Labor Condition Application (LCA) with the Department of Labor (DOL). Once approved by the DOL, your employer can then file the LCA and form I-129, known as the Petition for Nonimmigrant Worker, with USCIS. Your employer may also need to submit other documents — such as training certificates, a resume, and a confirmation letter.
Once the I-129 is approved, you can apply for consular processing by completing the Online Nonimmigrant Visa Application (form DS-160), paying the appropriate fees, and scheduling an interview.
You’ll need to bring a number of documents to your interview — including receipts for fee payments, a valid passport, the confirmation page of DS-160, Forms I-129 and I-797, and a passport-sized photo. You will also need to answer a number of questions about you, your work history, and your prospective job.
From there, the consular officer will make their decision about your application. If approved, you’ll be able to start working in the United States on October 1st. And if you happen to fall in love during your H-1B employment, you may even be able to apply for a marriage-based green card.
For a more in-depth look into the H-1B visa application process, check out Boundless’ guide on the topic.
So far, we’ve only described the process if it goes smoothly. But what if something goes wrong? What if you leave the country, and your application is rejected? Will you be able to return to the United States as a DACA recipient?
To answer these questions, we’ll need to better understand DACA’s travel policy. Assuming you’ve already received DACA benefits, you should be able to leave the country by getting “advance parole.” To do this, you’ll need to complete Form I-131 (“Application for Travel Document”). Note that your reason for travel must fall into 1 of 3 categories:
Trips home to attend a funeral, visit a sick relative, or get medical supplies
Semesters abroad or travel-related to research
Interviews, meetings with clients, conferences, and other work-related travel
It’s possible — if you’ve already developed a relationship with an employer — that you may be able to apply for advance parole for the purposes of employment. As long as Form I-131 is approved, you should be able to leave the United States and return without interrupting your DACA status.
Switching to an H-1B visa if you’re on DACA is not straightforward. But, for now, this appears to be an option until Congress finally provides a path toward permanent residence or citizenship for DACA recipients.