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Can a DACA Recipient Apply for an Employer-Sponsored Green Card in the U.S.? Can a DACA Recipient Apply for Nonimmigrant Status in the U.S., Such as an H-1B or E-2?

Deferred Action for Childhood Arrivals (DACA) is a program that was introduced by the Obama Administration in June 2012 to provide work authorization and administrative relief from immigration enforcement action to certain unlawfully present aliens who entered the United States as children in two-year renewable grants. For more information about the original DACA initiative, please click here.

The Trump Administration announced in September 2017 a phase-out of the DACA initiative. For more information about the DACA program’s cancellation by the Trump Administration, please click here.

Congress has yet to provide a permanent legislative solution. In the meantime, federal courts have weighed in and have halted the program’s rescission. For now, the program is still operating according to the U.S. Citizenship and Immigration Services (USCIS) guidelines issued in January 2018 for those who are renewing a previously granted application. For more information about the current DACA policy, please click here.

Since the DACA program was introduced, about 800,000 young people – often called DREAMers – have participated in the program, which has allowed them to contribute to their communities and to the economy in meaningful ways. In the midst of the uncertainty currently surrounding the DACA program, many DREAMers are trying to gain some measure of security in the United States, including by looking into ways they may obtain valid immigration status in the United States.

Unfortunately, federal regulations do not offer a direct path from deferred action to lawful permanent residence. Furthermore, DACA does not provide nonimmigrant status that allows the individual to move into another nonimmigrant classification. That is, a person on DACA cannot change to an E-2, H-1B or F-1 visa for example. They are also not eligible for many green card categories.

Depending on certain factors, including the age of the DACA recipient when he was first granted DACA and the amount of unlawful presence he has accrued in the United States, he may be able to leave the country to obtain an employment-based nonimmigrant visa or green card to the United States. In addition, DACA recipients may in certain circumstances be able to obtain a green card through marriage.  However, DACA recipients should seek the legal counsel of an experienced immigration attorney to determine the benefits and risk factors associated with pursuing valid immigration status in the United States.

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