How the New D-3 Waiver Process Streamlines Employment-Based Visa Access for Dreamers

Published: August 6, 2024

Dreamers represent a diverse population, encompassing those with and without Deferred Action for Childhood Arrivals (DACA). These DACA recipients and other Dreamers are pursuing degrees and careers in specialized fields, such as healthcare, STEM, and education. They can leverage these education credentials to qualify for various employment-based temporary visas. 

That would enable them to apply for adjustment status and occupy critical workforce needs while benefiting the US economy. DACA has helped about 835,094 Dreamers to attend school, work, and plan their futures without worrying about deportation. 

Unfortunately, the existing procedure is lengthy and unpredictable, deterring many qualified individuals from applying. Many Dreamers, with and without DACA, face significant hurdles and heightened uncertainties to secure temporary work visas and join the workforce. 

However, with the new administrative actions, DACA recipients and other Dreamers can obtain expedited waivers and work visas. Below, we’ll discuss the updated guidance on the D-3 waiver process and how it can streamline Dreamers’ access to employment-based visas. 

Understanding the D-3 Waiver and Its Importance for Dreamers

Typically, acquiring an employment-based visa requires leaving the country to apply for re-entry to the US. However, doing so may trigger certain inadmissibility bars that block some individuals from re-entering. 

The Immigration and Nationality Act §212(d)(3) waiver, commonly called the D-3 waiver, can excuse most grounds of inadmissibility. It encompasses unlawful presence, which is often the primary immigration violation of most Dreamers. 

The D-3 waiver is an essential tool for DACA recipients and Dreamers to re-enter the US on an H-1B visa or other temporary work visa options. Otherwise, they could face 3 or 10 years of re-entry bars if they don’t have initial lawful entry or have accumulated over 180 days of unlawful presence in the US. 

Due to such restrictions, Dreamers historically faced significant barriers to acquiring work visas or permanent residency. But once approved, the D-3 waiver eliminates the prohibitive barrier, enabling Dreamers to apply for temporary employment visas at a consulate or US port of entry. After securing a valid non-immigrant status with work authorization, they can eventually re-enter the country and work for their employers. 

Why the Existing D-3 Waiver Needed an Update

The existing D-3 waiver process works poorly for individuals seeking temporary work visas. Applicants cannot request this waiver in advance. As a result, DACA recipients and Dreamers face the daunting prospect of waiting abroad for an undetermined period while awaiting approval. On average, getting approved can take several months to over a year. 

Additionally, the decision of whether or not to grant the waiver is often subjective and solely up to the consular officer. That means applicants remain unsure whether the consular official or Customs and Border Protection (CBP) will approve the D-3 waiver application before departing the country. 

With this limited written guidance and unclear processing timelines, applicants risk the imposition of re-entry bars. Without the approved D-3 waiver, they can be stranded outside the US for as long as 10 years. 

Hence, it’s unsurprising that only a few qualified Dreamers and US employers choose this route due to significant anxiety and delays. 

What the Updated Guidance on the D-3 Waiver Indicates

As part of the initiative to expedite the issuance of the D-3 waiver, the State Department provided updated guidance for consular officials through the Foreign Affairs Manual (FAM). 

Such updates aim to make the D-3 waiver process more transparent and predictable. They will clarify the conditions under which consular officers should recommend waivers. 

One of the notable considerations includes evaluating the positive effects of the following applicants on the country’s public interests: 

• Graduates of US higher education institutions
• Individuals holding credentials for skilled labor in the US
• Those seeking to enter the country to start or resume employment with a US employer in their field of study 

Although the processing steps will stay the same, the outcome of the new guidance is expected to speed up the review and approval of specific visa applications filed abroad. It’s essential to point out that only cases with clear and significant US public interest can be eligible for expedited requests for D-3 waivers.

Impact of the New Policy on Employment-Based Visa Access

With precise details in place for the D-3 waivers, Dreamers who qualify for the visa can begin working in the US without delay. The expedited review of waiver requests will shorten the period an approved individual would need to be outside the country. 

Moreover, it offers a more predictable pathway to secure a visa and eventually be able to return to the US for employment. Upon legal re-entry, individuals can gradually lessen the negative consequences of past unlawful presence, possibly making them eligible for permanent residence. 

Approving and streamlining D-3 waivers for US graduates, including DACA recipients and other Dreamers, is also a significant win for employers, especially those facing talent shortages. Besides benefiting those seeking opportunities, American businesses can more promptly tap into highly educated and skilled talent pools. 

This greater assurance and speed around the waiver process can help US employers mitigate hiring uncertainties, as well as boost the growth and diversification of the country’s workforce. 

Navigate the D-3 Waiver Process With Competent Legal Help

Deciding which waiver to apply for and whether you are eligible can be complex. Remember, consular officers have sole discretion to grant or deny waiver requests under all applicable laws, which can take several months. 

The upside is that working with an experienced immigration attorney can significantly boost your chances of success. With years of experience, we at ALG Lawyers, a reputable team of Los Angeles Immigration Lawyers, can help you take the right steps for your work visa application. 

We can guide you through the process, from completing all the necessary forms to gathering documentation to support your application and effectively presenting your case. Reach out to our team today for further assistance.