26 Nov How to Transition From DACA to H-1B
Many DACA recipients have lived much of their lives in the United States and may wish to seek more stable and long-term options, such as employment-based visas. The H-1B visa offers a path to achieve this goal, providing a temporary status that can lead to lawful permanent residency under the right circumstances. Henry & Grogan offers comprehensive legal services to help clients navigate the complex immigration landscape, including the process for DACA recipients looking to transition to H-1B visas.
What Is DACA?
DACA, which stands for Deferred Action for Childhood Arrivals, is a U.S. immigration policy that allows some individuals with an unlawful presence in the United States to receive a renewable two-year period of deferred action from deportation and become eligible for a work permit in the U.S. It was established by the Obama administration in June 2012.
The policy was designed to protect eligible young immigrants who came to the United States when they were children from deportation. Importantly, it does not provide lawful status or a pathway to citizenship. It does, however, allow these young people to apply for a social security number and driver’s license.
Most DACA recipients have grown up in the United States, often knowing America as their only home. They are often referred to as “Dreamers,” a term derived from the DREAM Act, which proposed that they be offered permanent legal status. These individuals have pursued or are pursuing education, are active in their communities, and significantly contribute to the economy. DACA has allowed them to step out of the shadows and openly participate in society with less fear of deportation.
Understanding the H-1B Visa
The H-1B Visa process is designed for professionals in specialized occupations that require a bachelor’s degree or higher in a specific field. This visa is particularly attractive as it allows DACA recipients to gain lawful status through work visas and have the opportunity to work in sectors such as technology, engineering, and finance, where their skills can meet critical workforce needs.
- H-1B Visa: This visa permits U.S. employers to employ foreign workers temporarily for specialty occupations. To qualify for a specialty occupation, candidates must demonstrate both theoretical and practical application of highly specialized knowledge, as well as hold at least a bachelor’s degree or its equivalent. The H-1B visa is limited to an annual quota of 85,000: 65,000 visas are available under the general category, with an additional 20,000 reserved for individuals who have obtained advanced degrees from U.S. educational institutions.
- H-1B1 Visa: This is a subtype of the H-1B visa specifically created for nationals of Chile and Singapore under Free Trade Agreements (FTAs) with those countries. H-1B1 visa requirements include expecting the applicant to demonstrate intent to return to their home country, unlike the H-1B, which can lead to permanent residency (green card). The H-1B1 visa also has a separate quota, with 1,400 visas for Chilean nationals and 5,400 for Singaporean nationals annually, which are not counted against the regular H-1B cap.
Changing DACA Status to H-1B
Transitioning from DACA to an H-1B visa involves several critical steps and careful planning:
- Assessment of Eligibility: Determine if the DACA recipient meets the qualifications for an H-1B visa, including having a bachelor’s degree or higher from an accredited institution or its equivalent. Employment must be in a field related to the degree, and the employer must sponsor the visa.
- Timing and Cap Issues: The H-1B visa has an annual cap with a limited number of visas issued each year. Timing applications correctly is crucial, as the window for filing H-1B petitions typically opens on April 1st for jobs starting on October 1st of the same fiscal year.
- Employer Compliance: The employer must file a Labor Condition Application (LCA) with the Department of Labor, attesting to paying prevailing wages and maintaining fair working conditions. This step is essential to prevent any issues that may arise with employment verification.
- Application Process: Once the LCA is approved, the next step is to file Form I-129, Petition for a Nonimmigrant Worker, with Citizenship and Immigration Services. This form requires detailed information about the proposed employment and the applicant’s qualifications.
- Addressing Unlawful Presence: DACA recipients who have accrued more than six months of unlawful presence may face penalties that can affect their eligibility for status adjustment. Legal guidance is necessary to navigate these complexities, ensuring compliance with all regulatory requirements.
Get Legal Assistance With Dealing With the United States Citizenship and Immigration Services
The role of the U.S. Citizenship and Immigration Services is critical in the transition process. This federal agency reviews the H-1B petitions to ensure that they meet all legal requirements for employment-based visas. Since navigating the shift from DACA to H-1B involves complex legal and procedural requirements, it’s best to partner with an immigration attorney.
At Henry & Grogan, we have expertise in both DACA-related issues and the broader scope of immigration law. This allows us to be ideally positioned to support clients through the change in status from DACA to H-1B. Our DACA lawyers can help you get an H-1B visa that allows for up to six years of residence in the U.S. and opportunities for renewal and eventual adjustment to lawful permanent resident (LPR) status under certain conditions.
Contact Us for Immigration Legal Services in Philadelphia, PA
If you are a DACA recipient or know someone who is considering their future immigration options, contact Henry & Grogan for a consultation. Our Philadelphia offices provide tailored legal services to help each client change their legal status to achieve their immigration goals. Reach out today to see how we can assist you with a DACA change of status to H-1B and help make your American dream a secure and permanent reality.