Update June 19, 2024
Easing work visas for DACA holders and Dreamers
The DOS has released more info about the executive action aimed at easing the nonimmigrant visa process for DACA recipients and Dreamers. The policy was presented with much fanfare, but upon closer examination, it falls short of its promises and is more complicated than it initially appears.
The policy essentially leverages existing laws rather than introducing significant changes. For a DACA holder with unlawful presence seeking an H-1B visa, the process is still quite challenging. The first step requires the Dreamer to be selected in the H-1B lottery, which runs in March of every year and is highly competitive.
After being selected in the lottery, the Dreamer must find an employer willing to file an I-129 petition on their behalf. This step is not straightforward as many employers are reluctant to navigate the complexities of immigration law. It’s even harder for DACA holders with Employment Authorization Documents (EAD) since they can already work legally, making it less appealing for employers to sponsor them for an H-1B visa. Once the I-129 petition is filed and approved, the Dreamer must leave the U.S. to attend a visa interview at a U.S. consulate in their home country.
At the interview, the consulate officer will deny the visa due to the Dreamer’s unlawful presence in the U.S. Following the denial, the Dreamer must file for a waiver of inadmissibility. The new policy provides guidance on when officers can expedite this waiver, but it’s not a guarantee of quick processing. Once the waiver is granted, the Dreamer can re-enter the U.S. and begin work under the H-1B visa.
However, the nonimmigrant waiver granted under this policy does not waive unlawful presence for the purpose of adjusting status to a green card. This means that while the Dreamer might start working on an H-1B visa, they will face another hurdle when trying to adjust their status to permanent residency, requiring yet another waiver.
A recent decision has provided some relief by allowing individuals to wait inside the U.S. to meet the 10-year bar requirement. However, this is still a lengthy and uncertain process, and it underscores the complexity and the multiple steps involved in navigating this pathway.
In conclusion, the new policy for Dreamers is more about streamlining existing processes than providing substantial new benefits. It still requires DACA holders to jump through numerous hoops and face significant legal challenges. While it’s a step in the right direction, it’s far from the comprehensive solution that many had hoped for. Dreamers and their advocates should remain cautious and well-informed as they navigate this convoluted landscape.
Update June 18, 2024
Following President Biden’s announcement, it seems the new policy aims to replace the I-601A and I-601 waivers, which have been in place for years. Although these waivers take a long time to adjudicate (3.5 yrs), once approved, the final step—consular processing—is generally straightforward with quick and easy interviews. Note that prior to Covid, the process is more like 6 months and the entire waiver + visa took about a year. This raises the question: why introduce a new policy likely to face tough legal challenges instead of expediting the existing waiver process?
President Biden mentioned that “70% of Americans support this effort. Critics will question the need for an executive action when a path already exists. Additionally, those facing deportation orders, especially in absentia (not showing up to court), will face the same difficulties under the new policy. Overcoming in absentia orders is extremely challenging with current options. It will be surprising if the new policy will make it easier for those with deportation orders to apply for GC in the US based on marriage to a US citizen.
June 18, 2024
On June 18, 2024, the White House announced sweeping new immigration policies aimed at keeping families together and providing a pathway for undocumented immigrants to legally live and work in the United States. These measures are part of President Biden’s ongoing efforts to reform the immigration system and provide relief to millions of undocumented immigrants and their families.
The announcement includes provisions for undocumented immigrants who have been married to U.S. citizens and have lived in the U.S. for at least 10 years. These individuals can now apply to legally work and live in the U.S. without having to leave the country first, thus preventing the risk of years-long separation from their families. Additionally, the new measures aim to make it easier for some Dreamers to obtain work visas, providing them with more stability and opportunities.
While these new policies are generating excitement among those who are qualified, there are significant concerns that need to be addressed. One major concern is the lack of provisions for those facing deportation orders, particularly those issued in absentia (not showing up to court). Overcoming in absentia orders is extremely challenging under current options. Waivers like I-212 (Permission to Reapply for Admission) and I-601A (Provisional Unlawful Presence Waiver) would need to be filed, but it is very difficult, if not impossible, for someone with an in absentia deportation order to obtain these waivers.
For Dreamers, while the new measures may provide pathways to work visas similar to the H-1B, there remains the issue of unlawful presence. Many Dreamers may have accumulated unlawful presence (ULP) prior to receiving DACA (Deferred Action for Childhood Arrivals) protection, which complicates their eligibility for other immigration benefits.
As we await further details on how these policies will be implemented, we will continue to monitor the situation closely and provide updates. It’s crucial to understand how the “case-by-case assessment” mentioned in the White House statement will be conducted and what criteria will be used to determine eligibility.
We understand that many of our clients and their families are feeling a mix of hope and uncertainty with these new announcements. Rest assured, we are here to guide you through these changes and help you navigate the complexities of the immigration system.
Stay tuned for more updates and detailed analyses of how these new policies will affect you and your loved ones.