Dear Sophie: Can our employee travel on DACA?

Here’s another edition of “Dear Sophie,” the advice column that answers immigration-related questions about working at technology companies.

“Your questions are vital to the spread of knowledge that allows people all over the world to rise above borders and pursue their dreams,” says Sophie Alcorn, a Silicon Valley immigration attorney. “Whether you’re in people ops, a founder or seeking a job in Silicon Valley, I would love to answer your questions in my next column.”

TechCrunch+ members receive access to weekly “Dear Sophie” columns; use promo code ALCORN to purchase a one- or two-year subscription for 50% off.

Dear Sophie,

My company wants to send one of its employees to India to open an office there. He came to the United States from India as a child on a visa, but he now has DACA status.

Can he take on this project and still be able to return to the United States? Will this impact his ability to renew DACA? Are there any other potential repercussions that we should keep in mind?

— Devoted to Dreamers

Dear Devoted,

I appreciate that you and your company are supporting Dreamers and providing peace of mind for your employee. My law partner, Anita Koumriqian, and I have worked with many Dreamers to help them obtain and renew DACA (Deferred Action for Childhood Arrivals) so they can attend university and work. Like other immigrants, Dreamers have to work harder to live the American dream, particularly since the DACA program has faced so many challenges in recent years, which Anita and I chatted about on my podcast.

Traveling abroad with Advance Parole

To answer your first question, your employee can travel to India to set up your office there only if he gets what’s called an “Advance Parole” document from U.S. Citizenship and Immigration Services (USCIS).

Since the U.S. ended its COVID-related travel restrictions from India this week, your employee could probably return to the United States with an approved Advance Parole document, complete COVID-19 vaccination and a negative COVID-19 test. You and your employee should know this comes with some risk.

For Advance Parole, your employee (who already has DACA) would have to file Form I-131 (Application for Travel Document) to USCIS and receive approval before he leaves for India. USCIS usually takes eight months or more these days to process travel document applications due to pandemic-related backlogs. Advance Parole is basically a travel document that allows DACA recipients living inside the United States to travel abroad temporarily for up to a year and seek to reenter the United States.

At its discretion, USCIS may grant Advance Parole for one of three reasons:

• Educational purposes, such as academic research or a semester-long study abroad program.
• Employment purposes, such as overseas projects, conferences, training, interviews or meeting with clients.
• Humanitarian purposes, such as to receive medical treatment, visit an ailing relative or attend the funeral of a family member.

Based on our experience, DACA recipients requesting Advance Parole based on employment purposes tends to be more difficult to obtain. USCIS adjudicators seem to be more willing to approve Advance Parole based on humanitarian reasons.

Some things to keep in mind: Your employee should not leave the U.S. before USCIS issues the Advance Parole document, otherwise his departure from the U.S. will automatically terminate his DACA status, his application for Advance Parole will be considered abandoned and he will not be able to reenter the U.S. In addition, he must have a valid passport from his country of citizenship.

Moreover, USCIS can revoke an Advance Parole document for any reason. In addition, you and your employee should be aware that having an Advance Parole document does not guarantee him reentry into the United States. A U.S. Customs and Border Patrol (CBP) officer at an airport or other U.S. port of entry has the discretion to approve or deny your employee’s entry into the U.S.

Given all of this, I recommend that your company support your employee by offering to retain immigration counsel to assist him with filing for Advance Parole if you decide to go down this path.

Your employee should discuss with an immigration attorney his particular circumstances that might make it difficult for him to get approval to reenter the U.S. upon his return from India, such as a DUI or any criminal convictions, even if they did not make him ineligible for DACA or previously leaving the U.S. without prior permission to reenter. An immigration attorney can also prepare your employee on how to truthfully answer questions posed by a CBP officer.

Renewing DACA

Although a federal court judge effectively stopped USCIS from processing DACA applications from individuals who have never had DACA before, your employee’s travel abroad should not have an impact on his ability to renew DACA or his work authorization. That is as long as he maintains DACA and encounters no trouble with reentering the United States.

A benefit of obtaining Advance Parole and reentering the United States is that your employee will have then entered the U.S. lawfully, potentially making him eligible for green card sponsorship. Take a look at a previous Dear Sophie column in which I discuss this in more detail. You should absolutely work with an experienced immigration attorney if you decide to pursue any of these options.

Best wishes on opening your office in India!

— Sophie

Have a question for Sophie? Ask it here. We reserve the right to edit your submission for clarity and/or space.

The information provided in “Dear Sophie” is general information and not legal advice. For more information on the limitations of “Dear Sophie,” please view our full disclaimer. You can contact Sophie directly at Alcorn Immigration Law.

Sophie’s podcast, Immigration Law for Tech Startups, is available on all major platforms. If you’d like to be a guest, she’s accepting applications!