DACA and Employee Travel: Can a DACA Recipient Travel for Work?

Navigating International Travel with DACA Status: A “Dear Sophie” Response

This is another installment of “Dear Sophie,” a resource dedicated to addressing immigration concerns specifically related to employment within the technology sector.

Sophie Alcorn, a Silicon Valley-based immigration lawyer, emphasizes the importance of these inquiries. She states that these questions are crucial for disseminating information that empowers individuals globally to overcome geographical limitations and achieve their aspirations.

Access to the weekly “Dear Sophie” columns is a benefit for TechCrunch+ subscribers. A 50% discount is available on one- or two-year subscriptions using the promo code ALCORN.

Dear Sophie,

Our organization intends to assign an employee to establish an office in India. This individual immigrated to the U.S. from India during childhood, initially on a visa, and currently holds DACA status.

Is undertaking this assignment compatible with their ability to re-enter the United States? Will this international assignment affect their eligibility for DACA renewal? Are there any other potential consequences we should anticipate?

— Devoted to Dreamers

Addressing Travel Concerns for DACA Recipients

Dear Devoted,

It’s commendable that you and your company are demonstrating support for Dreamers and prioritizing the well-being of your employee. My legal partner, Anita Koumriqian, and I have extensive experience assisting Dreamers with both obtaining and renewing their DACA (Deferred Action for Childhood Arrivals) status.

This support enables them to pursue higher education and employment opportunities. Like all immigrants, Dreamers often encounter increased obstacles in realizing the American dream.

The DACA program has faced numerous legal challenges in recent years, a topic Anita and I discussed on my podcast.

Key Considerations for International Travel

Generally, individuals with DACA are able to apply for Advance Parole to travel internationally. However, obtaining Advance Parole does not guarantee re-entry into the United States.

It’s vital to understand that applying for and receiving Advance Parole is considered an admission of a prior violation of immigration law, which could potentially jeopardize their DACA status and any future immigration applications.

Therefore, careful consideration and legal counsel are essential before proceeding with any international travel.

Potential Impacts on DACA Renewal

Travel outside the U.S. without Advance Parole could automatically terminate a person’s DACA status. Even with Advance Parole, there is a risk of being denied re-entry.

Furthermore, any issues encountered during travel or re-entry could negatively impact future DACA renewal applications.

Additional Repercussions to Consider

• Visa Requirements: Your employee may require a visa to work in India.
• Tax Implications: There may be tax implications for both your employee and the company related to working in India.
• Legal Compliance: Ensure full compliance with both U.S. and Indian labor laws.

It is strongly recommended that your employee consult with an experienced immigration attorney before undertaking this assignment to fully assess the risks and benefits.

International Travel with Advance Parole

Regarding your inquiry, your employee’s ability to travel to India to establish a new office location is contingent upon obtaining an Advance Parole document issued by U.S. Citizenship and Immigration Services (USCIS).

With the recent lifting of COVID-19 related travel restrictions from India by the U.S. government, reentry is potentially achievable with an approved Advance Parole document, alongside proof of complete COVID-19 vaccination and a negative COVID-19 test result. However, it’s crucial to acknowledge that some level of risk is inherent in this process.

To secure Advance Parole, your employee, currently holding DACA status, must submit Form I-131 (Application for Travel Document) to USCIS and receive approval prior to departing for India. Processing times for travel document applications currently average eight months or longer, largely due to pandemic-induced backlogs. Essentially, Advance Parole serves as a travel document enabling DACA recipients residing within the United States to undertake temporary international travel – up to one year – with the intention of returning.

USCIS may grant Advance Parole at its discretion, based on one of the following justifications:

• Educational pursuits, encompassing academic research or participation in study abroad programs.
• Professional obligations, such as overseeing overseas projects, attending conferences, undergoing training, conducting interviews, or meeting with clients.
• Humanitarian concerns, including seeking medical care, visiting ill relatives, or attending a family member’s funeral.

From our experience, obtaining Advance Parole predicated on employment-related reasons often presents greater challenges. USCIS adjudicators generally demonstrate a higher willingness to approve requests grounded in humanitarian considerations.

Several key points should be considered. Your employee must not exit the U.S. before the Advance Parole document is officially issued by USCIS; otherwise, their departure will automatically invalidate their DACA status, and their application will be deemed abandoned, precluding reentry. A valid passport from their country of citizenship is also a prerequisite.

Furthermore, USCIS retains the authority to revoke an Advance Parole document at any time. It’s also important to understand that possession of an Advance Parole document does not automatically guarantee reentry into the United States.

A U.S. Customs and Border Patrol (CBP) officer at a port of entry retains the discretion to either approve or deny your employee’s admission into the U.S.

Considering these factors, we advise your company to provide support to your employee by covering the cost of immigration counsel to assist with the Advance Parole application process, should you choose to proceed.

Your employee should consult with an immigration lawyer to discuss any specific circumstances that could potentially complicate reentry approval following their return from India. This includes past DUIs or any criminal convictions, even if they did not initially impact DACA eligibility or prior travel permissions. Legal counsel can also prepare your employee for truthful and effective responses to questioning by CBP officers.

DACA Renewal Guidance

Despite a federal court ruling that halted USCIS processing of initial DACA applications, an employee’s international travel shouldn't affect their ability to renew their DACA status or employment authorization. This holds true provided they maintain active DACA and experience no issues upon re-entry to the U.S.

Securing Advance Parole and subsequently re-entering the United States can establish lawful entry. This may then qualify your employee for future consideration for a green card sponsorship.

Further details on this topic were previously discussed in a "Dear Sophie" article. Consulting with a qualified immigration attorney is strongly recommended if you are considering these pathways.

We extend our best wishes for the successful launch of your India office!

— Sophie

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Please remember that the information presented in “Dear Sophie” is for informational purposes only and does not constitute legal counsel.

For a comprehensive understanding of the limitations of “Dear Sophie,” please review our complete disclaimer. Direct contact with Sophie is available through Alcorn Immigration Law.

Sophie’s podcast, Immigration Law for Tech Startups, is accessible on all popular podcast platforms. She is currently accepting applications for potential guests!