President Joe Biden announced a new immigration policy that could allow DACA beneficiaries greater access to H-1B visas and other employment pathways. The upcoming change would simplify encounters with existing authorities and aid other undocumented immigrants ineligible for the Deferred Action for Childhood Arrivals (DACA) program. President Obama constructed the program in 2012 to protect undocumented young people who were brought to the United States by their parents. In September of 2023, a District Court ruling in Texas declared the DACA program to be unlawful for new participants but allowed it to continue for current recipients. With no action by Congress, advocates have pushed for more administrative protections for DACA recipients and others.
Issues with the Current Policy for DACA Beneficiaries
The present procedure for DACA recipients and others who need a waiver to obtain a temporary visa does not work well. Attorneys, educators, professionals, and companies are hoping the new policy will offer relief and normalize the path for many seeking a government benefit to obtain a lawful employment status.
DACA beneficiaries need a D-3 waiver to reenter the country on an H-1B visa or other employment-based temporary visas. A D-3 waiver relieves a wide variety (but not all) of grounds of inadmissibility to the U.S., including unlawful presence according to Curran, Berger & Kludt. Any person with unlawful status for one year or more will be barred for ten years if they leave the country and try to reenter. However, an approved D-3 waiver eliminates that bar for temporary visa purposes, permitting the Dreamer to then apply for an H-1B visa at a consulate or port of entry, and then (if the visa is granted) to enter the U.S. in valid nonimmigrant status with work authorization.
According to Kelli Duehning, the current D-3 waiver process is defective. The D-3 waiver is not a waiver that can be applied for in advance. As a result, before leaving the country and potentially being barred from returning to the U.S. for 10 years, a person does not know if a consular official will advise in favor of the D-3 waiver or if Customs and Border Protection (CBP) (part of DHS) will grant it and how long will the process take.
One of the major issues that happen with the D-3 waiver process is that the consular officer in charge is the only one that has the discretion to request that CBP grant a D-3 waiver to an applicant. Currently, when the request for a D-3 waiver is sent to CBP, the file sits there for three to six months or maybe longer. What has been asked is that that needs to change and officers handling D-3 waiver applications need to predetermine the eligibility before applicants leave the country or at the time they pick up their temporary visa. There also needs to be a team of people that just looks at these DACA or undocumented graduate cases to adjudicate them in a timely manner. If that happened, individuals could acquire a visa and a waiver and return to the U.S to work for an employer in a matter of days or weeks.
The New Blueprint for DACA Recipients
The State Department announced it would provide updated guidance to consular officers through the Foreign Affairs Manual within 30 days the announcement was made to put into effect the new policy. What will these updates do? As stated by the U.S. Department, the updates will encourage consular officers to consider suggesting an expedited review of waiver requests in connection with certain nonimmigrant visa applications overseas. The outcome of this objective will be for applicants to quickly receive work visas if DHS approves a waiver of ineligibility.
Ultimately, it is in the hands of the CBP to approve the waivers and agree to expedite them.
How DACA Holders and Others Could Benefit from the New Immigration Policy
Since 2022, advocates have been campaigning with the current presidential administration to get clarifying guidance around the D-3 waivers and it is exciting to see such a policy coming to fruition, commented Miriam Feldblum (the executive director of the President’s Alliance on Higher Education and Immigration). The announcement is just the beginning and the real work starts with implementation. For colleges and universities, this is an opportunity for them to support Dreamers through existing employment-based immigration options.
Feldblum and immigration attorneys highly advised universities to screen their current DACA recipient employees to see if they would be eligible for an employment-based visa. The Presidents’ Alliance has a “Legal Pathways that Work Initiative” to help universities navigate the often complicated immigration process for non-citizen students. “The more streamlined use of the D-3 waiver will become part of this effort,” said Feldblum.
There are limitations to the current policy because only about 25% of H-1B registrations are selected in each year’s H-1B lottery due to the low annual enrollment limit. This means that even those who qualify for a D-3 waiver must still be eligible for an H-1B visa and be selected in the lottery. The primary exception would be individuals employed in H-1B status by universities, nonprofit organizations, and government research institutions, which are exempt from the annual limit.
Kelli Duehning notes that employers can consider a future L-1 visa for some DACA employees who could be employed in a company’s overseas operations to later return to the United States once eligible for the visa with the D-3 waiver. TN visas could represent another avenue for DACA recipients or other undocumented immigrants if they were born in Mexico and Canada and meet the eligibility requirements.
Cornell Law School professor Stephen Yale-Loehr, an advisor to the National Foundation for American Policy stated that “the parole in place provisions for undocumented spouses of U.S. citizens will get more press attention, but the other administrative action may be just as important.” “Employers have been reluctant to use the D-3 waiver because the process was slow and unclear. New State Department guidance is expected to make D-3 waivers more predictable and faster. In this tight labor market, that will be great news for employers.”
A DACA recipient who obtains a D-3 waiver and H-1B status might become eligible for permanent residence through employer sponsorship. To the extent opponents of H-1B visas succeed in restricting the ability of individuals to obtain H-1B status, they will also be blocking an avenue for DACA recipients to build a future in the United States.
Have Questions About the New Policy?
With the new immigration policy, there are going to be a lot of questions, concerns, and even anxiety levels going up. So, why not contact your nearest immigration law firm? Here at Gambacorta Law Office we will gladly answer your questions and put your mind at ease. Give us a call today at 847-443-9303.
