Corporate & Counsel Special Edition: Employer Impact Statement on Parole and DACA/Dreamer Executive Order

By Charina Garcia and Ceridwen "Ceri" Koski

What does this week’s “Keeping Families Together” initiative mean for corporate immigration? In the light of the White House’s June 18th announcement to provide work visas and a green card pathway for long-term residents of the U.S., this week’s newsletter will cover these two initiatives’ impact on corporate immigration programs. 

Because we expect this development to have widespread impact, I welcome Charina Garcia’s shared insight to explain this program.  Charina Garcia is WR Immigration’s Strategy and Innovation Partner. She hosts Chatting with Charlie monthly to deconstruct and explain Visa Bulletin Developments and hosts a Podcast called “Beyond Immigration Law.”  Since 1997, Charina has served employers across industries, always developing programs to improve stakeholder experiences.

Green Card Pathway

The Parole-In-Place program is grounded in the Executive Branch’s authority to exercise favorable discretion and grant Humanitarian Parole. If approved, the government would effectively process the applicant as inspected and paroled into the United States so that the applicant is eligible for immigration benefits.  

The Parole-in-Place green card pathway program applies only to individuals who:

• Are present in the United States without admission or parole;
• Have been continuously present in the United States for at least 10 years as of June 17, 2024;
• Have a legally valid marriage to a U.S. citizen as of June 17, 2024; and
• Have no disqualifying criminal history or otherwise constitute a thread to national security or public safety.

Beneficiaries of this program would be granted a one-time parole period of three years and eligible for work authorization for up to three years. Within that three period, the parolee may apply for a green card.

Effectively, the program provides a green card pathway, without leaving the U.S., to Deferred Action for Childhood Arrivals (DACA) recipients and other qualifying people who have resided in the U.S. for a long time but who entered the U.S. without inspection. The benefit not only applies to spouses of U.S. citizens but also stepchildren who can demonstrate that the step-child relationship existed on or before June 17, 2024.

Not since DACA was initially implemented 12 years ago, has a legalization program of this magnitude been rolled-out. The government reports that, on average, individuals eligible for the program have resided in the U.S. for 23 years.  The benefit is intended to protect approximately 500,000 spouses of U.S. citizens and 50,000 noncitizen children under the age of 21 whose parent is married to a U.S. citizen.  As such, this program would add hundreds of thousands of people to the workforce.

Non-Immigrant Work Authorized Visa Status

Interestingly, DHS also revealed that it will join the Department of State to facilitate employment-based visas to DACA recipients and Dreamers. The purpose of this partnership is to give DACA recipients a pathway to work visa status, for example H-1B. DHS specifically stated, “By clarifying and enhancing the existing process, the Department of State’s policy will give U.S. employers increased confidence that they can hire the talent they need, and that they will be able to quickly get to work.”

To qualify, applicants must:

• Have a degree from an accredited institution or higher education; and
• Have an offer of employment from a U.S. employer in a field related to the degree.

Under the initiative, employers will be able to sponsor visas for hundreds of thousands of workers. In addition, it will provide DACA recipients and Dreamers non-immigrant status which would then allow them to potentially pursue employment-based green cards.   

Although some employers already file H-1B petitions for DACA recipients, the petitions are rarely used. This is because unless the beneficiaries entered the U.S. and applied to DACA by 18.5 years old, DACA recipients are currently required to apply for waivers of unlawful presence at consulates abroad. Doing so raises the risk of being denied the waiver and subject to the 3 and 10-year bars against being admitted to the U.S. As such, H-1B visas have not been a strong option for DACA recipients and Dreamers who have grown up and have been educated in the U.S.

As mentioned above, DACA recipients cannot apply for H-1B status or Lawful Permanent Residence unless they depart the U.S. and apply for a waiver of unlawful presence or are otherwise provided lawful entry to the U.S. excusing the prior unlawful presence. In contrast, Temporary Protected Status (TPS) recipients who have not accrued unlawful presence may apply for H-1B status and adjust status to permanent residency within the U.S. Individuals who were initially paroled into the U.S. and then issued TPS may similarly change status to H-1B and obtain a green card. Below is a chart that specifies current work authorization and green card pathways currently available for DACA, TPS, Asylum, and Parolees.  This new program would add available work authorization benefits to eligible individuals.

Impact on Employers

We expect an Interim Final Rule to be published in the Federal Register by the end of summer implementing these programs. As such, it is not clear exactly how individuals will apply. Indeed, the Green Card Pathway Parole might be different from the Non-Immigrant Work Visa Status.  In addition, we may see challenges to the program and injunction.

With implementation of the program, employers can expect a larger workforce and more opportunities to sponsor H-1B and other work authorized visa status. Individuals may change the type of work authorization they use to re-verify status on their I-9 Forms. As such, employers should be ready to process new types of Lists of Acceptable Documents (LOAD) for A or B & C documentation.   In addition, employers who have previously tried to pursue H-1B status or employment-based green cards for DACA recipients, should now be able to do so for eligible employees.

Please contact your WR Attorney to discuss questions!