Lawyers helping Dreamers stay in US
Working with firms as DACA in jeopardy
As immigrants and advocates prepare for the possible end of the national program protecting young people from deportation, two Northampton lawyers are working with companies to help reclassify so-called Dreamers to secure their status as permanent residents.
The Deferred Action for Childhood Arrivals program, or DACA, has faced many threats since it was created more than a decade ago under the Obama administration, throwing beneficiaries of the policy into years of uncertainty because of political battles. While the program does offer two-year work permits and some protections for current recipients, it does not offer a pathway to citizenship for the more than 500,000 recipients in the United States.
There are other options, though, for some young undocumented people, but navigating that immigration process is like “a game of categories,” according to Dan Berger, one of the lawyers behind the push.
There are more than 30 visa categories for everything from athletes to au pairs, and it’s often about finding the right one for the right circumstances.
Berger and his colleague Megan Kludt, both attorneys with Curran, Berger and Kludt Immigration in Northampton, are working with companies to help DACA recipients get employment-based visas like the H-1B and O-1, or in some cases employer-based green cards.
“There’s a lot of nuances and it’s complicated,” Kludt said. “Immigration can be very segregated with legal experts. Some people just focus on employment-based options and work in business immigration, and other people focused on the more humanitarian side. But sometimes, you have to have a little bit of background in all of that to look at a DACA individual’s full story.”
‘The most common reaction I’m getting from employers is they just have no idea. This is news to them.’
MEGAN KLUDT,
about sharing information about DACA recipients and alternative immigration paths
As far as they know, this clinic, which they are running with Cornell Law School, is the first in the country to do this work with employers.
While companies like Microsoft and Google often hire immigrant tech workers through an H-1B visa, the process is harder for smaller businesses that are less familiar with America’s immigration maze or who can’t afford the costs associated with the process. An O-1 also known as a “genius visa” for people with extraordinary abilities could help some high-achieving DACA recipients, granting them work visas.
Cornell Law recently received a private $1.5 million grant to fund the work with a focus on DACA recipients in the Bay Area. So far CBK has screened around 80 DACA recipients to see if they would be eligible for alternative immigration paths.
In January, CBK published a guide with the Immigrant Legal Resource Center to share more information with the community.
“The most common reaction I’m getting from employers is they just have no idea. This is news to them,” Kludt said. “More often than not very quickly, I get an email back saying the employer is curious and would like to hear more about it.”
A doctor at the UMass Chan Medical School in Worcester is going through the process with CBK Immigration. He is a DACA recipient originally from El Salvador who first came to the United States as a 10-year-old. The Globe is not using his name as his immigration proceeding to receive an H-1B is still ongoing.
“For me, the biggest change would just be freedom,” he said. “In a way, DACA has always felt like bread crumbs.”
In this case, the doctor specifically had to additionally go through what’s known as a D3 waiver, a special process that’s necessary for immigrants who have spent time in the United
States without the proper authorization. According to federal immigration law, if someone is in the country without authorization, they can face a 10-year ban in some cases.
Since the doctor was brought to the United States as a child, those years are not counted against him. But DACA wasn’t created until he was 19, meaning he has a little over a year of “unlawful presence” working against him. The D3 waiver can help him stay in the United States despite the ban — if immigration officials grant it.
“The problem is most people who are DACA status cannot change over directly in the US to a temporary visa or to a green card, which means they have to leave the country to sort of reset their status,” Kludt said.
Leaving the US at any point without authorization also carries some risk. Recipients face the possibility of being denied the waiver, leaving them stranded in a country they were born in but do not call home.
Berger and Kludt sent the Biden administration in February a memo to support DACA recipients by nudging the D3 process along. Rather than taking months for the waiver to come through, federal officials can push immigration officers to respond in a matter of days, reducing the risk to recipients.
This is vital, they said, as recipients are no longer teens but working adults, some of them parents with mortgages, or people who are taking care of aging family members — responsibilities they can’t drop.
“We suggest [the Department of Homeland Security] and [the State Department] work together to streamline the D3 authorization process to make it a more viable option,” they wrote. “If the D3 took days or weeks instead of months, it would be used more.”
A spokesperson for the White House said in a statement the Biden administration is “always interested in exploring potential policy proposals that could improve our immigration system,” but did not elaborate further.
Carlos Aguilar Gonzalez, a DACA recipient and doctoral candidate who studied at Harvard University and is now at the University of Pennsylvania, warned that while this strategy is well intended, it limits the number of people who can benefit by focusing only on the most prestigious and educated.
“Initially it was our families and communities who were thrown under the bus for ‘deserving students’ to obtain an immigration benefit,” he said in an email, adding that now recipients have to prove they have “extraordinary ability” and accolades.
“I wonder what would happen or rather what segments of the DACA population would be left out of such efforts,” Aguilar Gonzalez said.
Berger acknowledges that not all DACA recipients would be eligible for these special kinds of visas — they often require people to at least possess an undergraduate degree and often more advanced skills that are in high demand. While almost 20 percent of recipients are enrolled in college, only 4 percent typically graduate, according to a report from the Migration Policy Institute, a nonpartisan think tank covering these issues.
“The very ambitious goal is to try to help, you know, maybe 20 percent of them to move into [a new] status,” Berger said.
Still “if you are an employer and you have the ability to sponsor someone, you are going to change the entire trajectory of their life,” Leezia Dhalla, a former DACA recipient said.
Dhalla was sponsored by her former employer FWD.us, an immigration advocacy organization that helped her move into a new status. She is now a permanent resident based in Texas.
“The cost of being an immigrant is exorbitant,” she said. “It costs a lot beyond money. It costs you your peace of mind, it costs you the ability to get a promotion at work, sometimes it costs you sleep when you’re worrying about not getting deported.”
Dhalla encouraged employers and DACA recipients to explore whether these pathways are feasible.
“It feels very complicated at the onset, but I would do it 10 times over and I think that I only wish that we had started sooner.”