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Documented Dreamers: An Explainer

Who are “documented Dreamers?”

Documented Dreamers are foreign nationals who entered the United States as dependents under their parents’ temporary, nonimmigrant visa status, usually a work visa. Under U.S. immigration law, at the age of 21, they will “age out” of eligibility for this dependent status. The parents of these “documented Dreamers” may be seeking permanent residency and, while still a dependent under age 21, their children can be included in their application. However, due to existing immigration backlogs, extraordinary wait times, and limits by country of origin to receive a green card, if these young adults do not receive permanent residency by the age of 21, then they lose their temporary dependent status and are removed from the green card queue, thus “aging out” of eligibility.

After they age out, many of these previously documented individuals are faced with falling out of legal status and becoming undocumented, finding another temporary visa status of their own, or having to leave the country when their status ends. In April of 2020, there were an estimated 253,293 children awaiting permanent residency based on their parents’ employment-sponsored visas. Many of these children are at risk of aging out. Documented Dreamers have been legally authorized to live in the United States for most of their lives, and many of them have spent little time in their countries of origin, having come to the U.S. with their parents at a very young age. This circumstance makes their situation somewhat analogous to the undocumented “Dreamers” that have been seeking legislation to gain status, thus the name “documented Dreamers” has come into use by and for this group. Documented Dreamers are also seeking legislation that would allow them to keep a legal status they previously held after they turn 21.

What are the characteristics of documented Dreamers?

Documented Dreamers tend to hold a variety of temporary visas. The most common ones are H-1B, E-1, E- 2, and L-1. The H-1B category allows U.S. employers to petition for foreign professional workers with specific characteristics. The L-1 visa is for intracompany transfers, when an employee is transferred to the United States to work for a U.S. company affiliated with their foreign employer. Dependents of H-1B visa holders come into the United States as H-4 dependents, a temporary status and a nonimmigrant visa. Similarly, dependents of L-1 visa holders have L-2 status. H-4 and L-2 status is valid for the length of the principal worker’s visa or until the child reaches the age of 21. Many children have aged out of their parents’ visas because they have been stuck in the green card queue for many years and the immigration backlog is taking longer than the time these individuals have to adjust their status before they age out.

Dependents of E-1 or E-2 visa holders rarely have the ability to apply for green cards; the parental status is indefinitely extendable but has no clear path to permanent residence. If they have children, their children age out of dependent status at 21, then must find their own visa to remain in the United States or obtain a green card. Documented Dreamers who fall out of dependent status tend to first look for other temporary statuses. Many rely on student visas to pursue post-secondary education or employment visas that temporarily allow them to stay in the country if they can find an employer sponsor.

Documented Dreamers are highly comprised of Indian or Chinese natives. For Indian and Chinese migrants, waiting in employment-based green card backlogs tends to cause immense issues. For most categories, the current backlog for those countries can mean waiting for decades. These backlogs derive from the 7% per-country caps that apply to nationals of any given country in addition to overall annual immigrant visa caps and per-category caps. Some experts predict that the number of immigrants waiting in these backlogs could exceed 2.4 million by 2030, most of whom will be Indian and Chinese nationals. It is estimated that for skilled Indian nationals their wait time can be up to 89 years for a green card.

Why are documented Dreamers not included in DACA protections?

Documented Dreamers tend to be disqualified from Deferred Action for Childhood Arrivals (DACA) protections. DACA is a policy that was introduced by the Obama administration in 2012 to protect around 800,000 young individuals who entered the United States unlawfully. DACA does not provide a pathway to permanent legal status and individuals must renew their application every two years. DACA applicants must also meet several other requirements, including having no lawful status as of June 15, 2012. For most documented Dreamers, their prior lawful status disqualifies them from DACA, unless they fell out of status before that date. However, DACA has been ordered by courts to end, and court orders have prevented new applications, including those from eligible documented Dreamers, from being accepted.

Current legislation

There are a few bills in Congress that could mitigate some of the issues faced by documented Dreamers. The America’s Children Act (H.R. 4331), introduced by Reps. Deborah Ross (D-NC) and Mariannette Miller-Meeks (R-IA), proposes protections for children of legal immigrants. The bill would provide a pathway to permanent residency, establish age-out protections, provide work authorization, and allow children who have aged out to retain their original priority date for their green card. Specifically, the bill would lock in a child’s age for immigration eligibility on the date they filed for a green card rather than the final action date on their application.

The same cosponsors drafted a version of the bill that is attached to the National Defense Authorization Act (NDAA) for Fiscal Year 2023. This provision would protect the dependent children of green card applicants and employment-based nonimmigrants who are facing deportation when they age out of status. On July 14, 2022, the House approved the NDAA in a vote of 329-101 and passed this bipartisan amendment to include protections for documented Dreamers. Not that at the time of publication, the Senate is drafting its version of the NDAA.

Conclusion

The 7% annual per-country limitation on green cards was included in the Immigration and Nationality Act of 1965. In the Immigration Act of 1990, Congress set the current caps on the number of employment-based visas available each year. Since then, the number of those applying for employment-based visas has grown exponentially. Without legislation adjusting the current employment-based immigrant visa cap, or without the creation of provisions that would limit the number of pending cases, these caps have led to the backlogs and uncertainty in status facing documented immigrants and their family members. Documented Dreamers have been confronted with self-deportation, finding other avenues to stay in the United States, or overstaying their visas and becoming undocumented. Congress is now considering provisions to offer documented Dreamers an opportunity to remain in the United States and alleviate the major problem of aging out, and the bipartisan support for the NDAA provision may give it a good chance of seeing enactment this year.

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