By Natalie McQuilkin 

Deferred Action for Childhood Arrivals, more commonly known as DACA, provides many benefits for those who came to the U.S. as children, such as protection from deportation; the ability to apply for a work permit and get a driver’s license; and access to a social security number, education, and healthcare. Although these benefits allow DACA recipients to live in the U.S. legally and without fear of deportation, DACA has to be renewed every two years, and it doesn’t provide a pathway to U.S. citizenship or lawful permanent residency (LPR) status. 

DACA’s permanency in U.S. government has also been at stake in the past decade, despite the fact that nearly 580,000 people receive DACA. In 2017, former president Donald Trump rescinded the DACA program, and it wasn’t formally reinstated until January 2021 by President Joe Biden. However, that doesn’t mean DACA operates as it did previously. Boundless explains that in October 2022, a federal judge “ruled that [DACA] could continue only temporarily and that new applicants would still be unable to apply.”  As of May 2024, U.S. Citizenship and Immigration Services (USCIS) is “accepting initial DACA requests, but in accordance with the [U.S. District Court for the Southern District of Texas] order, [USCIS] will not process initial DACA requests.” 

Temporary Protected Status, or TPS, has characteristics similar to DACA. TPS is designed for those who are facing an ongoing armed conflict, like a civil war, an environment disaster, or other extraordinary and temporary conditions, according to USCIS. Some countries that are designated for TPS as of June 2024 can be found here. 

Like with DACA, those who receive TPS can obtain a work permit and authorization to travel. You’ll have to re-register for TPS every re-registration period in order to maintain TPS. However, it’s not always guaranteed that the U.S. government will re-designate a country as fitting TPS guidelines, especially if the country’s conditions change by the next re-registration period. Also, TPS does not provide a direct pathway to LPR status or citizenship. 

So, if neither DACA nor TPS provide direct pathways to becoming an LPR or U.S. citizen, what are your options?  

Thankfully, having DACA or TPS does not prevent you from applying for obtaining permanent residency in the United States. There are plenty of pathways available that lead to green cards. In today’s post, we’ll discuss the EB-1A, EB-2, EB-2 National Interest Waiver, and the EB-3 applications. These are employment-based green card pathways that can put you on track to receiving a green card. 

The EB-1A Green Card 

The employment-based, first-preference visa, more commonly known as EB-1, is designed for three categories of people: those with extraordinary ability, outstanding professors and researchers, and certain multinational managers or executives. In today’s post, we’ll be covering the EB-1A, the green card for extraordinary ability, which we have also highlighted in a previous blog post.  

Something unique about the EB-1A is that you do not need to be sponsored by an employer, meaning the EB-1A is a self-petition pathway. This is a huge draw for those who do not want to seek out employers to hire and petition them, as it can be a struggle to find employers who are familiar with those processes. 

Now, let’s break down what’s required to be eligible for the EB-1A. 

The EB-1A accommodates those in the sciences, arts, education, business, or athletics who have received sustained national or international acclaim. To be eligible for the EB-1A, you must prove to USCIS that you have either received a significant achievement, such as an Olympic medal, an Oscar, or a Pulitzer prize, or that you meet three out of the ten following criteria: 

• Evidence of receiving lesser nationally or internationally recognized prizes or awards for excellence. These can include awards from national institutions or doctoral dissertation awards.   

• Evidence of being part of an association in your field that requires members to have outstanding achievements  

• Evidence of published material about you in professional or major trade publications or other major media. Some examples of this include newspapers articles, textbooks, major online publications, or transcripts of professional or major audio or video coverage.   

• Evidence that you have been asked to judge the work of others, either individually or on a panel. Eagan’s Senior Business Immigration Attorney, Hannah Whaley, explained in her webinar on self-petitioning that one example of this is a model or pageant queen being invited to judge a pageant for younger participants. Another example is a scientist or professor being invited to judge science fairs.  

• Evidence of your original scientific, scholarly, artistic, athletic or business-related contributions of major significance to the field. Letters of support, patents, documentation that your work has been cited, and publications about the significance of your work can be used to fulfill this category.   

• Evidence that you have written scholarly articles in professional or major trade publications or other major media  

• Evidence that your work has been displayed at artistic exhibitions or showcases  

• Evidence of your performance of a leading or critical role in distinguished organizations. USCIS explains that lead or critical roles include senior faculty or research positions; principals or heads of departments; and founders, co-founders, or contributors of a startup or distinguished organization.  

• Evidence that you command a high salary or otherwise significantly high remuneration in relation to others in your field. You can provide tax returns, job offer letters, or documents that compare your wage to others in your field.  

• Evidence of your commercial success in the performing arts. This includes volume of sales and box office receipts for a theater production, movie, or TV show.  

On top of fulfilling one of these three requirements, you must be able to provide evidence to USCIS that you prove you will continue your work in the United States and that your work in your field will substantially benefit the United States.  You can submit evidence about job offers, upcoming collaborations or projects, success of your work in your field, and more.  

Once you’ve gathered the required evidence, you’ll fill out and file the Form I-140 (Immigrant Petition for Alien Worker) for the EB-1A for USCIS. As of June 2024, it’s taking the Nebraska Service Center 14.5 months and 17 months for the Texas Service Center to process these applications. 

If you’re living in the U.S. with DACA or TPS, once your Form I-140 is approved, the next step is to file the Form I-485 (Application to Register Permanent Residence or Adjust Status), and attend a biometrics appointment and immigrant medical appointment. After the Form I-485 is approved, you’ll receive your green card.  

The EB-2 Green Card 

DACA and TPS recipients can also qualify for the employment-based, second-preference (EB-2) green card. The EB-2 caters to three categories: 

1. Those who have an advanced degree 

1. Those who have a bachelor’s degree plus five years of postgraduate experience 

1. Those with exceptional ability in the sciences, arts, or business 

Unlike the EB-1A, the EB-2 requires an employer to petition you. Although it can be overwhelming for some to find an employer who has petitioned employees before, working with an employer can provide a lot of career stability. The employer also takes on the majority of the filing fee costs, which is another plus.  

If you qualify for the advanced degree or bachelor’s degree plus five years categories, you will only need to provide evidence of your advanced degree or bachelor’s degree and related work experience. If you fall under the exceptional ability category, you’ll have to provide three of the following criteria to USCIS: 

• An academic record detailing your degree, diploma, or certification from a college, university, school, or other institution  

• Letters of recommendation from current or former employers documenting at least 10 years of experience  

• A license or certification to practice your profession  

• Membership in a professional association  

• Recognition for your achievements in your field from peers, government entities, and/or professional or business organizations  

• Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability  

After you’ve collected all the required evidence, your employer will have to obtain a permanent labor certification, which we’ve highlighted in a past blog post. As of June 2024, it’s taking the Nebraska Service Center 7.5 months to process Form I-140 and the Texas Service Center 8.5 months. Like we mentioned in the EB-1A section, once your Form I-140 is approved, you can file Form I-485 to adjust your status to receive a green card. 

The EB-2 National Interest Waiver 

The EB-2 National Interest Waiver (NIW) is very similar to the EB-2 green card in that it accommodates those with an advanced degree, a bachelor’s degree plus five years of experience, or exceptional ability. However, the main differences are that the EB-2 NIW is a self-petition pathway, and you must also apply for the National Interest Waiver. This requires you to provide evidence of how your profession and/or exceptional ability is important and beneficial to the United States. The National Interest Waiver essentially “waives” any need for a permanent labor certification or a job offer – both of which are required for the general EB-2 green card. We highlight in our blog post on the EB-2 NIW that creating a strong argument is at the core of applying for this green card. That is primarily because the NIW requires you to submit evidence to fulfill three prongs: 

• Your work has substantial merit and is nationally important to the U.S.  

• You have the knowledge and ability to work in your role in the U.S.  

• It would be beneficial for the U.S. to waive a job offer and labor certification because it is evident your work will benefit the country 

Because the EB-2 NIW doesn’t require an employer to petition you, you get to skip the process of obtaining a labor certification, which can save you time. As of June 2024, the Nebraska and Texas Service Centers are processing the Form I-140 for EB-2 NIW in 9.5 months.  

The EB-3 Green Card 

The last employment-based green card we’re covering in today’s post is the employment-based, third preference (EB-3) green card. While the other employment-based green cards we’ve highlighted in this post require advanced degrees or outstanding ability, this green card options is designed for skilled workers, professionals, and other workers.  

Like we mentioned earlier with the EB-2 green card, the EB-3 green card requires an employer to petition you, meaning this green card also requires you to receive a full-time job offer and your employer to obtain a labor certification. 

According to USCIS, skilled workers must be able to provide evidence that they possess at least two years of job experience, education, or training that meets the job requirements specified on the labor certification.  

The next EB-3 category is professionals. To be eligible for this category, you must have a bachelor’s degree or its foreign equivalent and meet other requirements specified on your employer’s labor certification.  

Finally, the EB-3 extends to other workers, also known as “unskilled” workers. If you have less than two years of training or experience but can prove you can perform unskilled labor, you can fit into this category. 

Like we mentioned with the EB-2 green card category, the EB-3 requires your employer to obtain a labor certification prior to hiring you and petitioning you. After this is completed, your employer can file the Form I-140. As of June 2024, the Nebraska Service Center is processing the Form I-140 for EB-3 skilled workers and professionals in 7.5 months, while the Texas Service Center is processing them in 8 months. Meanwhile, the Form I-140 for EB-3 other workers is being processed between 8 and 8.5 months at the Nebraska and Texas Service Centers. 

Next Steps 

With so many employment-based green card pathways to choose from, it can be overwhelming to determine which is the best for you. At Eagan Immigration, our senior business attorney, Attorney Hannah Whaley, is here to help. Attorney Whaley can help you determine your eligibility, fill out the required forms, make creative arguments, and guide you through the application process. If you are a DACA or TPS recipient and think you’re a good fit for any of the employment-based green card pathways we covered in this post, you can reach out to Attorney Whaley today by calling our office at (202) 709-6439 or clicking this link.  

References 

Deferred Action for Childhood Arrivals (DACA), Explained, Boundless,  What Is DACA? Everything You Need to Know – Boundless, (last visited: May 29, 2024). 

Consideration of Deferred Action for Childhood Arrivals (DACA), USCIS, (Apr. 8, 2024), Consideration of Deferred Action for Childhood Arrivals (DACA) | USCIS, (last visited: May 29, 2024). 

Jasmine Aguilera, DACA Has Been Fully Reinstated. Here’s What That Means for the Thousands of People Who Qualify for Protection from Deportation, TIME, (Dec. 8, 2020), DACA Has Been Fully Reinstated. Here’s Why | TIME. 

Count of Active DACA Recipients by Month of Current DACA Expiration, USCIS, (Mar. 31, 2023), Active DACA Recipients – March 31, 2023 (uscis.gov). 

Temporary Protected Status, USCIS, (Apr. 15, 2024), Temporary Protected Status | USCIS, (last visited: Jun. 3, 2024). 

Richard Link, J.D., What Are My Options After TPS Expires? Nolo, What Are My Options After TPS Expires? | Nolo, (last visited: Jun. 3, 2024). 

Employment-Based Immigration: First Preference EB-1, USCIS, (Mar. 1, 2022), Employment-Based Immigration: First Preference EB-1 | USCIS, (last visited: June 4, 2024). 

Hannah Whaley, Webinar: Self-Petition Options for U.S. Work Visas, Eagan Immigration, (Mar. 28, 2024). Webinar: Self-Petition Options for U.S. Work Visas – YouTube.  

Processing Times, USCIS, Processing Times (uscis.gov), (last visited: Jun. 4, 2024). 

Employment-Based Immigration: Second Preference EB-2, USCIS, (Apr. 20, 2022), Employment-Based Immigration: Second Preference EB-2 | USCIS, (last visited: Jun. 4, 2024). 

Employment-Based Immigration: Third Preference EB-3, USCIS, (Dec. 2, 2020), Employment-Based Immigration: Third Preference EB-3 | USCIS, (last visited: Jun. 4, 2024).