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IMMIGRATION JULY 05, 2024 | The Indian Eye 43

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can Competitiveness in the Twenty-First DACA recipients waiting to overcome such a qualifying relative, they need for the H-1B nonimmigrant status may
Century Act of 2000 (AC21) allows a 212(a)(9)(B) inadmissibility are thus not wait out the entire 10 years and change if the Fifth Circuit or Supreme
beneficiary’s H-1B status to be extend- unlikely to benefit from this provision. can waive the ground of inadmissibility. Court deem DACA unlawful, or if
ed for three years at a time if they are Some DACA recipients may opt In conclusion, obtaining the D-3 President Trump is reelected and yanks
the beneficiary of an employment-based for the L-1 nonimmigrant path if they waiver only allows the DACA recipient DACA. It remains to be seen whether
I-140 immigrant visa petition, and are spend one year abroad for a subsidiary, who faces the 3 or10 year bar to be ad- DACA could survive rescission efforts
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eligible to adjust status but for backlogs, parent, or branch of their US employer mitted into the US as a nonimmigrant. by a future Trump administration.
caused by per-country limitations, in the in a qualifying executive, managerial or If the DACA recipient needs to obtain When upholding DACA in 2020 in De-
employment-based first (EB-1), second specialized knowledge capacity. How- permanent residence, they must either partment of Homeland Security v. Re-
(EB-2), or third preference (EB-3) cat- ever, beware, that unlike one in H-1B wait it out for 3 or 10 years in a nonim- gents of the University of California, the
egories. The H-1B status can be extend- status who may be able to keep on ap- migrant status before they can get ad- Supreme Court found that the “reliance
ed every three years until the backlogs plying for extensions under AC 21, the mitted as permanent residents, or they interests” of DACA recipients, who
caused by the per country limitation shelf life of the L-1A status is 7 years, need to qualify for a second waiver un- have enrolled in college, embarked on
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clears. Because the priority date is like- and 5 years for the L-1B status, as AC21 der INA 212(a)(b)(b)(v). Most DACA careers, started businesses, purchased
ly to become current far more quickly does not apply to L-1s. One way to get recipients may be better off remaining homes, and married and had children in
for former DACA recipient not born in around spending 10 years in the US to in DACA status rather than exchanging reliance on the DACA program, must
India who are the beneficiaries of I-140 overcome 212(a)(9)(B) inadmissibility it for H-1B nonimmigrant status. Once be taken into consideration when decid-
petitions, they will be at a disadvantage is if the applicant is eligible for a waiver they are in H-1B nonimmigrant status, ing the future of the program. This case
when it comes to obtaining H-1B exten- under INA §212(a)(b)(b)(v), which is they will have to remain with the em- was discussed at length in a prior blog.
sions beyond the sixth year, as they need based on a showing of extreme hardship ployer who sponsored them and will
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to spend 10 years in the US before they to a qualifying relative such as a spouse not be able to seek employment in the *Kaitlyn Box is a Senior Associate at
can overcome the 212(a)(9)(B) ground or parent is a US citizen or lawful per- open market so readily. Of course, the Cyrus D. Mehta & Partners PLLC.
of inadmissibility, which could compli- manent resident. If an applicant has calculus of giving up DACA in exchange
cate the process of remaining in a val- _________________________________________________________________________________________________________
id nonimmigrant status while they wait Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Partner of Cyrus D. Mehta & Partners PLLC
to apply for adjustment of status. An in New York City. Mr. Mehta is a member of AILA’s Administrative Litigation Task Force; AILA’s EB-5 Committee; former chair of AILA’s
H-1B worker can also obtain a one year Ethics Committee; special counsel on immigration matters to the Departmental Disciplinary Committee, Appellate Division, First Department,
H-1B extension under AC21 §106(a) New York; member of the ABA Commission on Immigration; board member of Volunteers for Legal Services and board member of New York
if at least 365 days have elapsed since Immigration Coalition. Mr. Mehta is the former chair of the Board of Trustees of the American Immigration Council and former chair of the
the filing of a labor certification with Committee on Immigration and Nationality Law of the New York City Bar Association. He is a frequent speaker and writer on various immi-
the DOL or an immigrant visa petition You can click www.indialife.tv
with USCIS. See 8 CFR § 214.2(h)(13) gration-related issues, including on ethics, and is also an adjunct professor of law at Brooklyn Law School, where he teaches a course entitled
(iii)(D). However, noncitizens are pre- Immigration and Work. Mr. Mehta received the AILA 2018 Edith Lowenstein Memorial Award for advancing the practice of immigration law
cluded from availing of this extension and the AILA 2011 Michael Maggio Memorial Award for his outstanding efforts in providing pro bono representation in the immigration field.
on your browser and watch IndiaLife TV 24 Hours
if they do not file for adjustment of He has also received two AILA Presidential Commendations in 2010 and 2016. Mr. Mehta is ranked among the most highly regarded lawyers
status within one year of visa availabil- in North America by Who’s Who Legal – Corporate Immigration Law 2019 and is also ranked in Chambers USA and Chambers Global 2019
ity. 8 CFR § 214.2(h)(13)(iii)(D)(10). in immigration law, among other rankings.

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