Navigating Immigration for Tech Talent: A "Dear Sophie" Update

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

Sophie Alcorn, a Silicon Valley immigration lawyer, emphasizes the importance of these discussions. She believes that sharing information empowers individuals globally to overcome geographical limitations and achieve their aspirations.

Whether you are involved in human resources, are a company founder, or are actively seeking employment in Silicon Valley, your questions are welcome. Sophie aims to address them in future columns.

Exclusive Access: Extra Crunch subscribers gain weekly access to the “Dear Sophie” column. A 50% discount is available on one- or two-year subscriptions using the promo code ALCORN.

Dear Sophie,

Our organization is planning to employ a highly skilled data infrastructure engineer who currently lacks legal documentation. She has not previously sought Deferred Action for Childhood Arrivals (DACA) status.

Could you provide an update on the current status of DACA? What steps can we take to offer her support during this process?

—Multicultural in Milpitas

Dear Multicultural,

Thank you for reaching out with your questions and for your commitment to supporting a potential employee who may qualify for DACA. Your proactive approach is commendable.

Understanding the Current DACA Landscape

For a comprehensive overview of the latest developments regarding DACA, consider listening to a recent podcast episode.

This episode features insights from Anita Koumriqian, a partner at our firm specializing in family immigration law, and Cori Farooqi, an associate attorney within our family immigration team.

They deliver a detailed update on all facets of the DACA program, offering valuable context and guidance.

This resource can help you better understand the eligibility requirements and the application process.

Current Status of the DACA Program

Positive developments have occurred regarding the DACA program for individuals within the United States. The program has, for the most part, reverted to its original parameters as established by executive order during the Obama administration in 2012.

A recent ruling by a federal judge mandated that U.S. Citizenship and Immigration Services (USCIS) resume the acceptance and processing of new DACA applications. These had been halted in September 2017 following a prior administration’s announcement regarding the program’s termination.

Furthermore, President Biden, upon taking office, issued a presidential memorandum directing the Secretary of Homeland Security – the agency overseeing USCIS – to actively strengthen and maintain the DACA program.

Supporting Undocumented Engineers

Companies can provide crucial support to undocumented engineers by covering the costs associated with immigration legal counsel. This assistance would aid in the preparation and submission of applications for both DACA and an Employment Authorization Document (EAD), commonly referred to as a work permit.

It’s important to anticipate a processing timeframe of several months for these applications. Successful approvals will then enable the engineer to be legally employed within the United States.

Understanding the Eligibility Criteria for DACA

Individuals seeking eligibility for the Deferred Action for Childhood Arrivals (DACA) program and associated work authorization must meet specific criteria.

Key Requirements for DACA Consideration

Several conditions must be fulfilled to qualify for DACA. These include age at the time of the program’s inception and the age at which the individual entered the United States.

• Applicants must have been under the age of 31 as of June 15, 2012.
• Arrival in the U.S. must have occurred before the applicant’s 16th birthday.
• Continuous residence in the United States since June 15, 2007, is a mandatory requirement.
• Completion of high school, attainment of a General Educational Development (GED) certificate, or an honorable discharge from military service is necessary.
• A criminal record free of felony convictions, significant misdemeanors, or more than three minor misdemeanors is essential.

Upon receiving DACA status and a work permit – typically valid for a two-year period with potential for renewal – an employer can legally hire the individual.

Supporting DACA Recipients in the Workplace

Companies can proactively support employees with DACA status and other “Dreamers” through various means.

• Providing ongoing legal support is a valuable resource.
• Implementing a system for issuing renewal reminders for DACA status and work permits is crucial.
• Advocating for comprehensive immigration reform, such as the Biden administration’s proposals, which include a pathway to citizenship for DACA recipients, can be impactful.
• Exploring opportunities to sponsor eligible DACA recipients for a green card should be considered.

These actions demonstrate a commitment to supporting valued employees and contributing to a more inclusive workplace.

Key Provisions of the Proposed Immigration Reform

The Biden administration has urged Congress to pass immigration reform legislation focused on establishing a pathway to citizenship for Dreamers. This would initially be achieved through the granting of conditional permanent resident (CPR) status.

Those granted CPR status would subsequently be eligible to apply for legal permanent resident (LPR) status – commonly referred to as a green card – upon fulfilling specific criteria.

Eligibility Requirements for Green Card Status

Several avenues exist for CPR holders to qualify for LPR status, including:

• Successful completion of a U.S. university degree, or at least two years of study towards a bachelor’s or higher degree within the United States.
• Completion of a minimum of two years of military service, followed by continued service or an honorable discharge.
• Demonstrated employment history spanning three years, with at least 75% of that time spent working under an Employment Authorization Document (EAD).
• Qualification for a hardship waiver.

The proposed legislation outlines a five-year waiting period as a green card holder before individuals can apply for naturalization and become U.S. citizens.

The House of Representatives approved its version of this legislation, known as the Dream and Promise Act of 2021, back in March.

Currently, the Senate has not yet scheduled a vote on its counterpart, the Dream Act of 2021.

Considering Green Card Sponsorship for a Dreamer?

If your organization is interested in providing an engineer with lasting security and stability, explore the possibility of sponsoring them for permanent residency – a green card – following the attainment of DACA status. Developing a formal company policy regarding green card sponsorship can serve as a compelling tool for attracting and retaining international talent.

The process of sponsoring a Dreamer for a green card is intricate; therefore, collaboration with a knowledgeable immigration attorney is highly recommended. I previously detailed this process in a prior “Dear Sophie” article. Certain employer-sponsored green cards necessitate obtaining labor certification from the U.S. Department of Labor prior to filing the green card petition on an employee’s behalf.

This labor certification process is implemented to safeguard U.S. workers, ensuring they are not displaced and that their employment terms, wages, and working conditions remain unaffected. The green card categories requiring this certification include:

• The EB-2 green card, intended for individuals holding a master’s degree or equivalent.
• The EB-2 green card, available to those demonstrating exceptional ability in the fields of science, art, or business.
• The EB-3 green card, designed for skilled professionals with a bachelor’s degree and a minimum of two years of relevant training or work experience.

Alternative green card options exist that bypass the labor certification requirement, but they typically involve more demanding criteria:

• The EB-1A green card, for individuals with extraordinary abilities.
• The EB-1B green card, reserved for outstanding professors and researchers.
• The EB-1C green card, for executives or managers transferring to the U.S. for employment.
• The EB-2 NIW (National Interest Waiver) green card, for individuals with exceptional ability whose work demonstrably benefits the United States.

Your company can also extend support to employees pursuing marriage-based green cards by offering legal and financial assistance. Provided the marriage is bona fide, this route often presents a faster and more cost-effective path to permanent residency compared to employer sponsorship.

Thank you once more for your support of Dreamers!

Sincerely,

Sophie

Do you have a question for Sophie? Submit it here. We maintain the right to edit submissions for clarity and length.

Please note that the information contained within “Dear Sophie” is intended for general knowledge and does not constitute legal counsel. For a complete understanding of the limitations of “Dear Sophie,” please review our comprehensive disclaimer. You may reach Sophie directly through Alcorn Immigration Law.

Sophie’s podcast, “Immigration Law for Tech Startups,” can be found on all popular podcasting platforms. She is currently accepting applications from potential guests!