For Employers: Why Support DACA workers?

DACA employees might not be aware of their eligibility for employment-based work visas or may believe that they don’t qualify. Even if they know they qualify, many DACA employees might be afraid to approach their employers to help them in the process out of fear that they might be treated differently than other employees without DACA.

Many private immigration attorneys who have experience with employment-based work visas have not worked with DACA recipients before. Our immigration attorneys have expertise in both employment-based visas and have experience working with persons with DACA and have successfully helped DACA recipients obtain employment-based visas.

DACA recipients have specific legal considerations to take into account for both employment-based green cards and nonimmigrant visas. For example, because many DACA recipients have been in the United States for many years, some DACA recipients may qualify for a green card under a law known as INA 245(i). Moreover, although many DACA recipients were unlawfully present prior to applying for DACA, the majority of DACA recipients who pursue a nonimmigrant employment-based visa can qualify for a waiver and obtain statuses like an H-1B, O-1, or L-1 visa.

For those employers that have not provided immigration sponsorship before, we can discuss not only sponsoring DACA employees, but the possibility of adding employer sponsorship as a recruitment and retention tool for international employees, such as foreign students graduating from U.S. schools.

Yes. Check out success stories of DACA recipients securing both green cards and nonimmigrant employment-based visas. Among the consultations conducted by Path2Papers, approximately 20% of DACA recipients meet the criteria for various types of employment-based visas.

If you’re unsure if any of your employees have DACA, Path2Papers recommends that you send a general message to your staff informing them that there is a possibility that the DACA policy could be terminated because of the pending lawsuit and inviting them to come to our website at path2papers.org to learn more about these options. If you or your employees have a connection to the San Francisco Bay Area, you can also invite them to obtain a free legal consultation from us. Each employer has different interests and structure, so our team of employment-based immigration attorneys can discuss this all confidentially before reaching out to employees.

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 instance, the expenses including filing and government fees for sponsoring an H-1B visa can be about $1,700 and $2,960, contingent upon whether the employer falls under nonprofit status or is categorized as a small company. The filing and associated government fees for some green card applications requiring labor certification can amount to approximately $4,000 or more. Additional expenses might also apply, such as if the employer opts to expedite the procedure through Premium Processing, which is an additional fee of $2,805.

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).

However, we are very pleased to share that for nonprofit or government employers linked to the San Francisco Bay Area, Path2Papers can offer access to pro bono representation, alleviating concerns about these expenses.

By law, portions of some employment-based visa applications and attorney fees must be paid by the employer and cannot be paid for or reimbursed by the employee. For example, the filing fees for an H-1B and associated attorneys’ fees must be paid for by an employer. Under some circumstances, the employee can pay for premium processing to expedite the H-1B processing, such as when the need to expedite is for the employee’s benefit rather than out of necessity for the employer.

Before filing some employment-based green card applications, employers first are required to receive Permanent Labor Certification (PERM), where the employer has to prove to the U.S. government that they’ve tried to hire U.S. workers first but couldn’t find anyone suitable. This includes advertising costs for the position, which the employer is required to pay.

Once a PERM has been granted, the employee can pay for filing the actual green card application and associated fees. That being said, many employers choose to cover these fees as well.

Just like the costs, the length of the process depends on several factors, including the type of employment-based option that an employee pursues, the employee’s country of origin, whether the employer pays an additional cost to expedite the application, and other factors. For example, H-1B petitions can take about four to six months to process (or 15 days if the employer pays for Premium Processing). Some green cards can take two to three years to process (though it can take longer if a person is born in China or India).

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. 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. Our attorneys can discuss exemption from the lottery. We are also watching an “H-1B Modernization Rule” that the Biden Administration intends to publish later this year. The proposed rule clarified the exemptions for nonprofits, and our team organized several comments from nonprofits and government agencies to support this much needed flexibility.

There isn’t a set duration for the employee to remain employed by the sponsor after obtaining the green card. If the employment relationship is “at will,” the employer can terminate the employee, and likewise, the employee can resign at any time.

However, if this happens prior to the employee receiving his green card, the employee might have to begin the process anew with the new employer. For some green card applications, if the new employment is similar in nature, the employee may be able to retain their priority date and continue the process with the new employer through a process known as “porting.”

Employees are able to leave their employers after receiving their green card. That being said, if the employee leaves shortly after receiving their green card, the government could suspect that the employee did not have a genuine intent for long-term employment with the employer, which can come up at the time they apply for U.S. citizenship, so the employee should be prepared to show that other circumstances led them to switch jobs. As discussed above, our team can talk to employers confidentially before they consider immigration sponsorship – to go over concerns about employees leaving shortly after being sponsored.

If an employee switches jobs while having a non-immigrant visa, like an H-1B, the new employer must generally file a new H-1B petition for the employee. In some circumstances, the employee can start working for the new employer as soon as the new H-1B petition is filed through a process called “portability.” Similarly, if the original employer filed an adjustment of application (I-485) for the employee to obtain their green card, the employee can generally switch jobs in the same or similar occupation.