Employers Have Limited Options for Helping Dreamer Employees

Employers Have Limited Options for Helping Dreamer Employees

HR will have few ways to retain DACA participants if the program expires

Allen Smith, J.D. By Allen Smith, J.D. September 20, 2017

This is the second in a three-part series of articles on the Deferred Action for Childhood Arrivals (DACA). Today we look at how employers can assist DACA participants in their workforces.

Human resource professionals may want to help Dreamers, whose work permits will soon expire, stay employed, but companies don't have many options for assisting DACA participants, immigration law experts say.

How involved the employer gets may depend on how difficult the employee would be to replace, according to Andrew Greenfield, an attorney with Fragomen in Washington, D.C. If the burden would be significant, the employer may help the worker file for an extension or provide the worker with immigration counsel.

The I-9 process creates an opportunity to have a conversation with DACA participants about other work permit options, Greenfield said. "There may not be a lot of good ones," he added.

Notice to DACA Participants

​The United States Citizenship and Immigration Services suggests that employers remind employees at least 90 days before the workers must reverify their DACA status, which is two years after their DACA authorization was granted. They will be required to present a valid document, such as an Employment Authorization Document with two more years of DACA participation, showing continued employment authorization to work in the United States. Most employers notify employees 90 to 180 days in advance, Greenfield said.

The Department of Homeland Security plans to extend authorization for immigrants with existing DACA protection that expires by March 5, 2018, but such reauthorization applications must be filed by Oct.  5, 2017. Because DACA lasts for two years, "many individuals will continue to be work-authorized until Sept. 5, 2019, and some even until March 2020," said Yova Borovska, an attorney with Buchanan, Ingersoll & Rooney in Tampa, Fla.

Luis Campos, an attorney with Haynes and Boone in Dallas, said it would be beneficial for employers to give a general reminder about the Oct. 5 deadline in an apolitical way, such as by posting a notice on a bulletin board, though he added that most DACA recipients are aware of the deadlines.

"Individuals have the burden of understanding the rules and filing for extensions," he said, noting that DACA is not an employer-sponsored program. 

Temporary Protected Status

​There may be work permit options other than DACA if the employee is married to a U.S. citizen, eligible for political asylum, or comes from a country that's war-torn or has been devastated by a natural disaster, Greenfield said. Temporary protected status (TPS) is available only for a few countries: El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, Sudan, South Sudan, Syria and Yemen.

TPS currently is scheduled to expire and will need to be renewed by the government as follows for these countries:

  • El Salvador: March 9, 2018.
  • Haiti: Jan. 22, 2018.
  • Honduras: Jan. 5, 2018.
  • Nepal: June 24, 2018.
  • Nicaragua: Jan. 5, 2018.
  • Somalia: Sept. 17, 2018.
  • Sudan: Nov. 2, 2018.
  • South Sudan: May 2, 2019.
  • Syria: March 31, 2018.
  • Yemen: Sept. 3, 2018.

However, there has been speculation that the TPS program may not be renewed, CNN reported. 

Limited Choices

If the DACA program expires, Borovska said, employers' hands will be tied. The workers cannot be hired as contractors if the employer has knowledge of their lack of work authorization. The government can impose severe civil and criminal penalties for knowingly employing unauthorized workers.

Limited employment visa sponsorships may be possible, but they would be risky and not available in many cases, she said. These nonimmigrant, employment-based visas might include the H-1B, O-1, L-1, TN, E-2 or E-3 with a 212(d)(3) temporary waiver of inadmissibility grounds.

"Such options would entail a risk of denial that could result in the applicant being stuck outside of the U.S. for a very long time—even up to 10 years," she said.

H-1B visas are for people in specialty occupations requiring at least a bachelor's degree in a specific field, such as engineering or medicine. The H-1B is limited to 85,000 visas per year—a 65,000 general cap plus a 20,000 cap for those with advanced degrees. Some employers, such as universities, nonprofits affiliated with universities, nonprofit research organizations and nonprofit government organizations, are exempt from the limit, so DACA beneficiaries working for such employers may be more likely to get an H-1B, Borovska noted. 

The O-1 visa is for individuals with extraordinary abilities in various fields—such as researchers, artists, performers, educators and athletes—and requires being well-known and well-regarded in the field.

The L-1 visa would require the DACA beneficiary to work abroad for at least one year at an entity with a qualifying relationship with a U.S. entity in a managerial/executive or specialty knowledge capacity.

The TN, which is for North American Free Trade Agreement professionals, is a less preferable option because it requires more extensive ties to the home country. "But it could be possible if the individual establishes some ties abroad first," she said.

The E-2 is for treaty investors—only nationals of certain countries that have trade treaties with the U.S., such as Colombia, Mexico and the United Kingdom, qualify for this.

The E-3 is only for Australian professionals. "The consulate would expect to see indications of strong ties abroad," she noted.

These would all be temporary rather than permanent solutions, however.

[SHRM members-only toolkit: Understanding and Obtaining U.S. Employment Visas]

3- and 10-Year Bars

​These visa options are difficult to manage because for a person to obtain a visa without first leaving the U.S., the person needs to have a lawful status in the United States, Borovska explained. DACA beneficiaries do not have a lawful status, so they cannot obtain nonimmigrant visas while they are physically in the United States. Instead, they would have to leave the United States and apply for a visa stamp at the U.S. embassy or consulate in a foreign country, and then travel back to the U.S. on the visa.

Someone who has 180 days of unlawful presence in the United States incurs a three-year bar from re-entering the United States once he or she leaves; one year or longer of unlawful presence results in a 10-year bar. The bars do not apply to minors under 18.

"DACA protects from unlawful presence that triggers the bars," Borovska said. "Therefore, nonimmigrant visas might be a particularly suitable option for DACA beneficiaries who departed 179 days after turning 18 or who got DACA within 179 days after they turned 18. Some kids were able to get DACA within 179 days of turning 18 or before turning 18, so they have no bars and can [receive] consular process visas, assuming they meet the eligibility requirements for a visa."

​Many DACA beneficiaries have already analyzed their immigration situation under existing permanent residence options and have determined that they do not qualify for any pathway to a green card, she noted. "We would definitely encourage DACA beneficiaries to revisit their situation again because the law is constantly evolving, and new circumstances or regulatory changes may have created new options for them."

Once an employer learns that someone may be unable to renew his or her work authorization, corporate recruiters should get involved, Greenfield said. "Global employers should think about whether they can use a DACA employee overseas." 

This was the second in a three-part series of articles on DACA. Tomorrow's installment will examine congressional proposals to provide continued work authorization to DACA recipients. Yesterday's installment focused on the tech sector's support of Dreamers.


Was this article useful? SHRM offers thousands of tools, templates and other exclusive member benefits, including compliance updates, sample policies, HR expert advice, education discounts, a growing online member community and much more. Join/Renew Now and let SHRM help you work smarter.



HR Daily Newsletter

News, trends and analysis, as well as breaking news alerts, to help HR professionals do their jobs better each business day.