Individuals with prior periods of unlawful presence, including DACA beneficiaries and others, may travel abroad to apply for nonimmigrant visas such as H-1B, O-1, TN, or other temporary visas at U.S. consulates. Following a BIA case known as Matter of Delcarmen-Lara, however, a departure from the United States may trigger a 3- or 10-year unlawful presence bar, depending on the amount of unlawful presence previously accumulated.
This FAQ is organized in two parts. The first part addresses the general framework for unlawful presence bars, D3 waivers, and the legal arguments available depending on when a person departed the United States. The second part focuses specifically on practical strategies for H-1B holders.