With the president’s recent announcement that DACA (Deferred Action for Childhood Arrivals) will soon end, beneficiaries of this program (“Dreamers”) are justifiably concerned.  We certainly still hope that Congress will provide the long-overdue path to immigration status that these wonderful young people deserve.  In the meantime, we would like to make a certain subset of Dreamers aware of another path they may be able to take.

H-1B status could be available to Dreamers who have at least a bachelor’s degree, and also have a job offer (or currently have a job) that requires their particular degree.  The reason that most of the “older” Dreamers have not been eligible for this status is because, by operation of law, anyone who was older than 18-1/2 when they were granted DACA, had more than six months of unlawful presence in the United States.

The good news for younger Dreamers is that there is a difference between unlawful presence and unauthorized presence.  Every single Dreamer had unauthorized presence.  That is, individuals who were documented on June 15, 2012, were not eligible for DACA.  But those who were under 18 did not have unlawful presence, because unlawful presence does not start to accrue until one’s 18th birthday.  Building on this, anyone who was granted DACA before they were 18-1/2, had less than 6 months of unlawful presence, unless they have had gaps in their DACA over the years, may be eligible for H-1B status.

You may be eligible for H-1B status if:

  • you have less than 6 months unlawful presence;
  • you have a bachelor’s degree; and
  • you have an appropriate job offer

However, there is an important caveat that all potential DACA H-1B applicants need to be aware of:  they will not be able to “change status,” a term of art that means the individuals gets H-1B status without leaving the United States.  That is because, in order to “change status,” you must have status.  Instead, these individuals will have to leave the United States and get an H-1B visa at the US consulate in their country of birth, and then return using the visa.

An example would be Alicia, a Mexican citizen, whose history and potential for H-1B status is detailed below:

Date Event Status
05/15/1994 Date of birth Mexican citizen
04/20/2002 Entered United States illegally (was not admitted/inspected) Mexican citizen

Minor whose presence is unauthorized but not accruing unlawful presence

05/15/2012 Turned 18 Mexican citizen

Begins accruing unlawful presence

07/15/2012 Applied for DACA Mexican citizen

Continues to be unlawfully present

10/15/2012 DACA application approved Mexican citizen

DACA recipient – lawful presence begins (total accrued unlawful presence: 5 months)

05/20/2016 Awarded B.Sc. in Electrical Engineering Mexican citizen

DACA recipient – lawful presence continues

06/01/2016 Working as Software Engineer with DACA employment authorization Mexican citizen

DACA recipient – lawful presence continues

10/15/2016 Most recent DACA renewal approved Mexican citizen

DACA recipient – lawful presence continues through 10/14/2018

04/01/2018 Employer submits H-1B application Mexican citizen

DACA recipient – lawful presence continues through 10/14/2018

08/01/2018 H-1B application approved Mexican citizen

DACA recipient – lawful presence continues through 10/14/2018

9/20/2018 H-1B visa approved in Ciudad Juarez Mexican citizen

H-1B visa beneficiary

10/01/2018 Return to US with H-1B visa Mexican citizen

H-1B nonimmigrant

We hope that this post will help some Dreamers proceed further from their current status – it is important to note that once in H-1B status, there is often a path to lawful permanent residence and eventual US citizenship. If you believe that, like Alicia, you may be able to pursue H-1B status, we invite you to schedule a consultation with our firm, so that one of our attorneys can assess your eligibility for this benefit. We offer consultations via teleconference or Skype for prospective clients who are outside Chicago or Northern Virginia.

Please be aware that this post does not constitute legal advice.  The unique circumstances of each case must be examined individually before proceeding with any immigration application.

Nancy M. Vizer

Author Nancy M. Vizer

Ms. Vizer has experience in most aspects of immigration law and has participated on panels at several continuing legal education seminars concerning immigration topics. She has also made presentations to both faculty and human resources staff at a number of universities in connection with immigration employment issues.

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