For Employers: Why Support DACA workers?

Overview of DACA

Deferred Action for Childhood Arrivals (DACA) provides protection from deportation and work authorization for certain individuals who arrived in the United States at a young age and meet specific criteria. Current recipients can renew their DACA every two years if they maintain their qualifications.

Importantly, however, DACA is not a legal status and does not lead to U.S. citizenship. What’s more, the legality of DACA remains at risk. On January 17th, 2025, the Fifth Circuit ruled that parts of DACA were unlawful; however, it did allow DACA recipients to continue renewing their DACA protections while the litigation continues. Therefore, for now, nothing has changed for DACA recipients, their protections remain in place, and they can and should continue to renew their DACA. The case could still potentially proceed to the U.S. Supreme Court for further consideration.Given the current composition of the Supreme Court, it is possible that the Court will find DACA unlawful and consequently terminate the policy.

For this reason, it is crucial to explore other pathways to legal status now. If the DACA policy is terminated, approximately 580,000 individuals would be deprived of both work authorization and protection from deportation, forcing them to leave their jobs. FWD.us estimates that 460,000 DACA recipients are currently working, which puts their employers in a unique position to support their staff.

In this resource, we discuss how Human Resources and supervisory staff can be instrumental in assisting DACA employees to explore other immigration statuses, including employment-based work visas. Among the consultations conducted by Path2Papers, approximately 71% of DACA recipients meet the criteria for various types of employment-based visas.

How Path2Papers Can Support

Cornell Law School’s Path2Papers initiative offers free individual consultations to DACA employees and employers with a connection to the San Francisco Bay Area to assess eligibility for different employment-based work visas. If the employer sponsoring a DACA employee is a nonprofit, school or government agency and has a connection to the Bay Area, Path2Papers can also try to connect them with free or low cost legal representation or with organizations that can provide financial assistance in specific cases.

Click here to sign up for a free legal consultation.

Overview of Employment-Based Work Visas

In immigration law, employers have different avenues to help an employee apply for lawful status, potentially paving the way for the employee to obtain U.S. citizenship in the future. Alternatively, some employees can also apply by themselves without needing an employer to sponsor them.

There are various types of employment-based work visas, generally divided into two categories:

Green Cards: The first category includes green card applications, otherwise known as lawful permanent residency. Obtaining a green card provides a direct pathway to U.S. citizenship. Unlike the nonimmigrant (temporary) visas discussed below that often require educational degrees or specific skills, some green card pathways are available to many types of workers without any educational degrees or special skills.
Nonimmigrant Visas: The second category includes “nonimmigrant,” or temporary, visas. Although nonimmigrant visas are generally meant to allow persons to be in the United States only temporarily, some allow the individual to come with the intent to apply for a green card in the future. The most common nonimmigrant employment-based visas for DACA recipients are H-1B (for persons with at least a bachelor degree or its equivalent), O-1 (persons with extraordinary ability or achievements), and L-1 (managers and executives who work for a foreign affiliate of a U.S. company).

The costs of sponsoring an employment-based visa depends on the employment-based option sought, whether the employer is a nonprofit entity or a small company, and the individual circumstances of the employee. For a general overview of the H-1B and Green Card fees, see our H-1B Visa and Employment-Based Green Card Filing Fees Breakdown.

Additionally, there are attorney fees to consider. Our attorneys can discuss the range of fees that private attorneys might charge, depending on the size of your entity and the type of job. We can also explain which fees must be paid by the employer by law, and which are negotiable. For employers, one concern is that the employee may leave soon after the employer pays for a green card. We can discuss options with your employment or labor counsel, such as reimbursing the employee for part of the fees if the employee stays a certain number of years (the carrot) or liquidated damages clauses (the stick).

For nonprofit or government employers linked to the San Francisco Bay Area, Path2Papers may be able to refer them to free or low-cost pro bono representation, or access to organizations that can provide financial assistance, for these expenses.
Unlike green cards or O-1 or L-1 visas described above, H-1B visas have an annual numerical cap of 65,000-85,000 visas a year. Since there are generally more H-1B applicants than the number of visas available each year, the government has established a “lottery system” in which applicants enter a lottery to have a chance at obtaining an H-1B visa. This means that the probability of “winning the lottery” can be low.

However, certain non-profit organizations, institutions of higher education, and government research agencies are exempt from this visa cap. These organizations are known to be “cap-exempt.” This means that employees working for one of these entities can apply for an H-1B without having to worry about the visa cap or entering a lottery. At the end of 2024, an “H-1B Modernization Rule” was published that clarified some of these exemptions for nonprofits and could make it easier to meet the definition of cap-exempt in certain scenarios. Our team helped organize comments from nonprofits and government agencies to support this much needed flexibility. For more information on cap-exempt organizations, see our resource The H-1B Lottery: A Brief Overview of Cap-Subject and Cap-Exempt Employers.

For Employers: Why Support DACA workers?

Overview of DACA

How Path2Papers Can Support

Overview of Employment-Based Work Visas

FAQ

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