Immigration Article of the Day: DACA Beyond Boundaries: Employment-Based Strategies by Jaclyn Kelley-Widmer

Abstract

Deferred Action for Childhood Arrivals (DACA) is a landmark immigration policy that has changed the lives of many young immigrants but is at imminent risk of ending. As an exercise of prosecutorial discretion, DACA provides temporary work authorization and protection from deportation but does not offer a pathway to permanent status. Still, DACA recipients can be eligible for other, better immigration options, such as humanitarian visas, family petitions and even employment-based options—though the common misconception is that employment routes are unavailable for DACA recipients. However, DACA creates a discretionary ambit around DACA recipients that has not been fully explored. The discretionary decision to provide this group with deferred action in fact opens up several other mechanisms that can create a bridge between DACA and a work visa.

This article details employment-based visa options for DACA recipients and other vulnerable groups. After explaining how the discretionary underpinnings of DACA may soon come undone, whether through pending litigation or by the Trump administration, this article then focuses on the legal processes of which a DACA recipient or undocumented person could avail themselves to receive a work-based visa. Through a careful look at the theory of discretion and its connection to other provisions in immigration law, this article describes potential paths forward for DACA recipients and other long-term undocumented communities.

KJ