Hundreds of thousands of undocumented immigrants applied for Deferred Action for Childhood Arrivals (DACA) after the program was implemented in June of 2012. Under this program, many were able to receive Employment Authorization Documents, allowing them to work legally in the United States. With the future of DACA uncertain, because it was authorized through Executive Order by President Obama, many with work authorization under DACA may begin to look into other kinds of work visas or permits for which they may qualify.

There are a number of guest worker visa program under the United States immigration laws.  The most commonly referenced is the H-1B visa program which hires temporary workers who typically have a first degree and often more advanced degrees. The types of workers employed on this visa include engineers, teachers, and computer programmers. In order to receive an H-1B visa, a person must have a qualifying employer willing to sponsor his or her application.

An employer cannot seek an H-1B visa on behalf of an undocumented immigrant.  Unfortunately, DACA as a program did not legalize its participants, and they are technically still eligible for deportation at a later date if the program is eliminated or the next administration reprioritizes deportation targets. This means that it is not generally possible for a person who is on DACA, and is therefore an undocumented immigrant, to get an H1B visa.

The Immigration and Nationality Act’s Section 212(d)(3) waiver presents a way for an undocumented immigrant with an employer willing to sponsor an H-1B visa to successfully gain legal admission into the country and work under the temporary H-1B visa. However, the waiver is also a huge gamble because the undocumented immigrant has to leave the country in order to apply for the waiver, and leaving after having been in the country unlawfully for more than one year triggers certain bans on re-entry. This is where the waiver comes in; an undocumented immigrant who received the waiver of inadmissibility can be allowed to return to the United States on a temporary non-immigrant visa such as the H-1B visa without having to serve out the period of the ban abroad.

This waiver would not remove the person’s inadmissibility permanently, and the person would still likely have to serve out the three- or ten-year bans once the temporary visa expired or he or she sought to change status to an immigrant visa. In addition, the H-1B visa restricts the worker to the sponsoring employer, if an employee want to change employers, the new employer has to sponsor a new H-1B visa or the employee has to leave the country.

While this option presents a way to exit the country and re-enter and work without fear of deportation if DACA gets revoked, it is also quite dangerous because the exiting immigrant is not guaranteed a waiver or an H-1B visa. Before deciding what action to take, it is always best to discuss your case with an experienced attorney.

Contact Us for Legal Assistance
If you are in Pasadena, California, and looking to change your status from a non-immigrant visa to an immigrant visa, or looking for a way to adjust your status so you can legally live and work in the United States, contact our multilingual staff to speak to an experienced immigration attorney from Strassburg, Gilmore & Wei, LLP.