President Joe Biden announced a new immigration policy that could allow DACA recipients greater access to H-1B visas and other employment paths. The change would streamline existing authorities and aid other undocumented immigrants ineligible for the Deferred Action for Childhood Arrivals program. President Obama created the program in 2012 to protect young people without legal status brought to the United States by their parents. A September 2023 District court ruling in Texas declared DACA 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.
Two New Immigration Policies Announced
On June 18, 2024, President Biden announced two new immigration policies. The first policy provides a potential path to permanent residence for certain undocumented immigrants married to U.S. citizens.
“In order to be eligible, noncitizens must—as of June 17, 2024—have resided in the United States for 10 or more years and be legally married to a U.S. citizen, while satisfying all applicable legal requirements,” according to the White House. “On average, those who are eligible for this process have resided in the U.S. for 23 years.” The policy provides a three-year period to apply for a green card and allows for work authorization during this time. The Biden administration estimates the policy, which will require case-by-case processing by DHS, will “protect approximately half a million spouses of U.S. citizens,” and about 50,000 children under 21.
The second policy will direct the State Department and Department of Homeland Security to enable DACA recipients and others without legal status to gain an H-1B or other employment-based temporary visas. DACA is not a legal status but a form of executive branch protection from deportation. (A White House background press call provided additional information on both policies.)
Problems With The Current Policy For DACA Recipients
The current process for DACA recipients and others who need a waiver to obtain a temporary visa does not work well. Attorneys, education professionals and companies hope the new policy will provide relief and normalize the path for many individuals to obtain a lawful employment status.
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DACA recipients need a D-3 waiver to reenter the country on an H-1B visa or other employment-based temporary visa. A D-3 waiver (Immigration and Nationality Act §212(d)(3) waiver) “excuses a wide range (but not all) of grounds of inadmissibility to the United States, including unlawful presence,” according to Curran, Berger & Kludt. Anyone in unlawful status for one year or more will be barred for ten years if they leave the country and try to reenter. “An approved D-3 waiver removes that bar for temporary visa purposes, allowing 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 United States in valid nonimmigrant status with work authorization.”
Kelli Duehning, a partner at BAL, explains why the current D-3 waiver process works poorly. “It’s typically not a waiver that can be requested in advance,” said Duehning. As a result, before leaving the country and potentially being barred from reentering the United States for 10 years, an individual does not know if a consular officer will recommend in favor of the D-3 waiver or if Customs and Border Protection (part of DHS) will grant it and how long the process will take.
“The consular officer is the only one that has the discretion to request CBP grant the waiver,” said Duehning. “Today, when the request goes to Customs and Border Protection, it sits there for three to six months, maybe longer. What we and others have asked for is either to predetermine the eligibility before individuals depart the U.S. or at the time they pick up the temporary visa, and have 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 get a visa and waiver, and be back in the United States to work for an employer within a few days or weeks.
The New Policy
The State Department announced it would issue updated guidance to consular officers via the Foreign Affairs Manual within 30 days to implement the new policy.
“These updates will also encourage consular officers to consider recommending expedited review of waiver requests in conjunction with certain nonimmigrant visa applications overseas,” according to the State Department. “This will result in certain individuals to potentially more quickly receive work visas if DHS approves a waiver of ineligibility. . . . [T]his policy will clarify when consular officers should consider recommending waivers, so that individuals and employers can make informed decisions and streamline the process so that those who qualify can get to work quickly.”
“Ultimately, CBP has to approve these and agree to expedite them,” said Duehning. “CBP typically defers to consular officers on the approval aspect but not always on the expedite—so we hope Customs and Border Protection will also get guidance on the expedite criteria.”
A DHS Fact Sheet provided few details on its new approach. “DHS will join the Department of State in an effort to more efficiently facilitate certain employment-based nonimmigrant visas for eligible individuals, including Deferred Action for Childhood Arrivals recipients.” The statement then references the State Department and that DHS and State will be “clarifying and enhancing the existing process.” The Fact Sheet concludes, “DHS will implement the Department of State’s policy update.”
How The New Policy Could Benefit DACA Recipients And Others
“We have been advocating for this clarifying guidance around D-3 waivers with the current administration since 2022, so it is exciting to see it come to fruition,” said Miriam Feldblum, the executive director of the Presidents’ Alliance on Higher Education and Immigration. “The announcement is just the beginning, and the real work begins 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 recommend universities 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 noncitizen students. “The more streamlined use of the D-3 waiver will become part of this effort,” said Feldblum.
The current policy is limited because only about 25% of H-1B registrations are selected in each year’s H-1B lottery due to the low annual limit. That means even those eligible for a D-3 waiver must still qualify for an H-1B visa and be selected in the lottery. The primary exception would be individuals hired in H-1B status by universities and nonprofit and government research institutes, 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.
After reentering the country in a lawful temporary status, individuals can “work off” the time they spent in unlawful presence, which could help make them eligible for permanent residence. That means if they reenter the United States on an H-1B visa and maintain lawful presence, they could likely apply for adjustment of status in three or ten years, depending whether their unlawful presence triggered the three-year or ten-year bar.
“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,” said Cornell Law School professor Stephen Yale-Loehr, an advisor to the National Foundation for American Policy. “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 via 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.
