DACA (Deferred Action for Childhood Arrivals)
News on Obtaining Legal Status for DACA Holders
Announced on June 17, 2024
Updated on August 30, 2024
The Biden administration announced two relief measures on June 17, 2024, for individuals with undocumented status.
One measure is for those who entered the U.S. illegally and are living with a U.S. citizen spouse. This is known as "Parole-in-Place (PiP)." Information about PiP has been posted on our website: https://en.hopelaw.com/pip
The other measure provides a pathway for DACA holders to obtain permanent residency. This is called "Streamlining 212(d)(3) Waivers for DACA Recipients," but for convenience, we will refer to it as the "DACA Waiver."
Upon analyzing the DACA Waiver, our attorneys found that the beneficiaries of this measure are very limited.
Here is an explanation of how the DACA Waiver works:
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A DACA holder receives approval for an H1B visa petition.
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The DACA holder then visits the U.S. Embassy or Consulate in their home country to apply for an H1B visa and submits the DACA waiver application at the same time.
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The U.S. Embassy or Consulate generally approves the DACA Waiver and issues the H1B visa.
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Once the DACA holder enters the U.S. with the H1B visa, they will have the same legal status as other H1B holders, and if sponsored, they can obtain permanent residency.
However, we see two main issues with this process:
First, it is very difficult to get H1B petition approval. If the individual does not have a specialized job eligible for an H1B visa, they are not eligible for this benefit. Even if they do have such a job, it is still challenging to get an H1B visa due to the annual quota. For example, in 2024, around 500,000 people applied, but fewer than 85,000 (17%) were approved.
Second, if the H1B visa is denied by the U.S. Embassy or Consulate, the individual cannot return to the U.S. Although the likelihood of denial is considered low, the possibility, even if it's 5%, could cause significant anxiety for DACA holders.
Due to these concerns, our attorneys recommend that applying for the DACA Waiver should be considered very carefully. A mistake could mean not being able to return to the U.S.
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What is DACA?
DACA is a status given to individuals who came to the United States before the age of 16 and lost their legal status before June 15, 2012. Currently, new applications are not being accepted, and only renewal applications, which must be submitted every two years, are being accepted.
To qualify for DACA, the following conditions must be met:
- You must have been under the age of 31 as of June 15, 2012.
- You must have arrived in the United States before your 16th birthday.
- You must have continuously resided in the United States since June 15, 2007, up to the present time.
- You must have been physically present in the United States on June 15, 2012, and at the time of your DACA application.
- You must be currently in school, have graduated from high school, or have obtained a GED.
- You must not have been convicted of a felony, significant misdemeanor, or multiple misdemeanors, and must not pose a threat to national security or public safety.
DACA does not provide lawful status or a path to permanent residency. However, it offers temporary protection from deportation and allows recipients to work legally and contribute to the economy. DACA recipients are often referred to as "Dreamers."
Attorney Steven Jeau has handed approximately 1,000 DACA cases since the program was implemented in 2012.
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