Congressional failure to act on immigration legislation has severely impacted the undocumented community. The continuing stalemate in Congress has created a significant challenge with heightened uncertainty for many Dreamers with and without DACA. President Biden has now taken action to combat this deadlock with two announcements made in June 2024:
- The Department of Homeland Security will take action to help citizens with noncitizen spouses and children keep their families together. This new process will allow spouses and children to apply for Lawful Permanent Resident status without having to leave the country.
- The Administration will take action to facilitate the employment visa process for individuals who have graduated from college and have a high skilled job offer, including DACA and other dreamers.
The second announcement is particularly significant for DACA recipients and other Dreamers. DACA has been in place for 12 years and has provided more than 800,000 Dreamers with the ability to work lawfully and go to school.
Based on their education and achievements, many Dreamers qualify for employment-based temporary visas, which would allow them to adjust their status and fill critical workforce needs while ensuring that U.S. employers and communities benefit from their contributions and talent. Typically, obtaining these visas requires leaving the U.S. and reapplying for entry.
However, DACA recipients and Dreamers who have accrued more than 180 days of “unlawful presence” in the U.S. and/or do not have “initial lawful entry” to the U.S. could face 3- or 10-year bars to re-entry into the U.S., unless they obtain what is known as a “D-3 Waiver.”
What is the D-3 Waiver?
The Immigration and Nationality Act §212(d)(3) waiver, known as the D-3 waiver, can waive various grounds of inadmissibility, including unlawful presence, which is the primary violation for most undocumented graduates. Once approved, this waiver removes that bar for temporary visas, such as the H-1B visa, enabling Dreamers to obtain their visa at a U.S. consulate abroad and enter the U.S. with work authorization.
However, applying for a D-3 waiver abroad can be unpredictable, with unclear processing times or expedited policies. Dreamers must risk leaving the United States to wait abroad for an unknown amount of time, facing significant uncertainty while their case is being adjudicated.
Significance of the New Administrate Action
President Biden’s administrative action clarifies the guidance for D-3 waivers. Specifically, the strategic approach includes new language in the Foreign Affairs Manual, allowing for more predictable and streamlined access to employment-based visas for eligible DACA recipients and other Dreamers. This is meant to streamline D-3 waivers and ensure quicker processing times, helping Dreamers move into status through employer sponsorship.
DACA individuals can also request advanced parole as a safety net in case their D-3 waivers take too long or there is a problem with the visa. The Department of State is going to provide us with more guidance soon on how decisions and expedite requests will be handled.
In summary, by streamlining the visa process for these graduates, the administration aims to enhance the U.S. workforce and stimulate economic growth. For information regarding the New Family Unity Program, stay tuned for our upcoming blog posts. If you have questions on anything related to this topic, such as eligibility requirements or the process of obtaining a visa, reach out to our team at Berardi Immigration Law!
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