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D-3 Waivers and DACA: What’s New
Contributor: Van T. Doan
The Biden administration introduced administrative actions on June 18, 2024, designed to make it simpler for DACA recipients and other undocumented immigrants who came to the U.S. as children to remain and work in the United States. The actions allow DACA recipients and Dreamers with a degree from an accredited U.S institution of higher education to more easily apply for a D-3 waiver and obtain a work visa.
What is a D-3 Waiver?
A D-3 waiver is a type of waiver of inadmissibility. A waiver of inadmissibility allows individuals who would ordinarily be inadmissible to the United States, for a variety of reasons, to legally be present in the country. A D-3 waiver can allow Dreamers to get an employment-based temporary visa at a U.S. consulate abroad. They can then re-enter the U.S. with valid immigration status and work authorization.
Why Do Dreamers Need a D-3 Waiver?
DACA recipients and other Dreamers may need a D-3 waiver because they are subject to a 3-year or 10-year bar from applying for a U.S. visa. If an individual has been in the United States without authorization for at least 180 days, but less than a year, they are subject to a 3-year bar. If they have been in the U.S. for a year or more, they are subject to a 10-year bar from applying for a visa.
However, a D-3 waiver can waive these grounds for inadmissibility, allowing someone with such a waiver to legally be present in the United States.
Why Does the U.S. Government Impose a 3- or 10-Year Bar?
The 3-year and 10-year bars were implemented by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). That law was passed in an effort to reduce the population of unauthorized immigrants that was on the rise in the 1990s. Legislators hoped that by creating new and more severe penalties, they would discourage unauthorized immigration.
However, the legislation had an unintended effect: immigrants who would otherwise have come to the United States for relatively short-term work and then go home found it made more sense not to return to their home countries. Instead, they simply stayed in the United States without authorization.
Aren’t DACA Recipients Already Eligible for a D-3 Waiver?
Yes, and in most cases, those waivers are already granted. The Biden administration’s actions are simply intended to streamline the process. The process that had been in place was long and cumbersome, and often unpredictable. Accordingly, many people were hesitant to go through the process of applying for a D-3 waiver and the risk of leaving the United States to do so.
Why Did the Biden Administration Want to Streamline the D-3 Waiver Process for Dreamers?
It makes sense: if people work hard in this country to become educated, it’s good for the United States to have the advantage of their knowledge and skills. As the Biden administration announcement pointed out, “Recognizing that it is in our national interest to ensure that individuals who are educated in the U.S. are able to use their skills and education to benefit our country, the Administration is taking action to facilitate the employment visa process for those who have graduated from college and have a high-skilled job offer, including DACA recipients and other Dreamers.”
DACA has been threatened in the past, and it could be again. With the new streamlined process in place, Dreamers can obtain H-1B and other employment visas and their fates will not need to be tied to the still-uncertain future of the Deferred Action for Childhood Arrivals (DACA) program. Current DACA recipients have work authorization, but the Supreme Court could end the program within a year. Over 400,000 people could be forced out of their jobs.
That’s not counting the tens of thousands of soon-to-graduate college students who cannot apply for DACA because the program is currently frozen, and even younger students whose inability to meet the program’s requirement date makes them permanently ineligible.
How Does the Streamlined D-3 Waiver Process Help?
The U.S. Department of State has published updates to its Foreign Affairs Manual. This is the handbook that officers use to evaluate visa applicants. The updated guidance specifies that it is in the public interest to admit to the United States individuals with a degree from a U.S college or university, and those with credentials to do skilled work. The guidance prioritizes these cases for expedited processing.
That means that DACA recipients and other Dreamers who wish to leave the country to apply for a D-3 waiver can do so with more confidence. They will have more information in advance about their likely eligibility, and the process itself should be faster, allowing them to return to the United States sooner with a valid immigration status. That provides not only Dreamers, but their employers, to have more certainty.
How Do I Learn More?
To learn more about the streamlined process for DACA recipients and Dreamers to obtain a D-3 waiver and employment visas, contact our law office to schedule a consultation.
Categories: Immigration Law
