By Krsna Avila, Dan Berger, and Stephen Yale-Loehr
It’s been just three months since the Biden-Harris administration launched clarifying guidance for certain waivers designed to clear the path for Dreamers seeking work visas, and we’re already seeing the results. We’re excited to share two success stories: one from a DACA recipient and another from an undocumented individual, both of whom have navigated this new process and are now examples of its potential.
We are part of an innovative new clinic at Cornell Law School called Path2Papers, focused on employer-sponsored immigration pathways for Dreamers. So far this year, we have done over 600 consultations and talked to dozens of employers. Ever since President Biden announced the new waiver guidelines in June, we have been helping to prepare and send test cases to report back to the administration on how the new guidance is working.
In July 2024, the State Department took a bold step forward by updating its Foreign Affairs Manual. This update clarified that certain U.S. college or university graduates can now qualify for expedited processing of waivers under section 212(d)(3) of the Immigration and Nationality Act, commonly known as D3 waivers.
The D3 waiver is a potential lifeline for DACA recipients and undocumented individuals who qualify for temporary work visas but must leave the United States to obtain them from a consulate abroad. Due to past immigration violations, like the three- or ten-year bars for unlawful presence, many applicants were hesitant to pursue work visas because of the uncertainty of the D3 waiver process. The process was grueling, often leaving individuals stranded overseas for months. Current processing times for D3 waivers are over 10 months, and another section of the FAM suggests that expedites should only be recommended in urgent humanitarian situations. The new D3 guidance is an important new tool for immigration lawyers to help Dreamers, as it offers clear criteria and the ability to expedite waiver requests.
Here are two examples of recent D3 waiver approvals:
First, an emergency medicine doctor who previously had DACA status applied for a D3 waiver in November 2023 at the U.S. embassy in his home country, only to be faced with delays due to outdated and unclear procedures. After the new guidance came out, his case was flagged to the US embassy and his waiver was fast-tracked and approved. He will soon travel to obtain his H-1B visa stamp and then return to the United States in valid nonimmigrant status, ready to continue his vital work in healthcare.
Second, we represented a master’s level structural engineer who grew up in the United States from an early age. Without DACA, he couldn’t work and was left in the shadows despite his talent. He never knew DACA existed until it was too late, and by the time he applied in 2021, his application was stalled by ongoing litigation over DACA’s future. Determined to change his fate, he bravely agreed to be the first undocumented person to travel abroad under the new D3 waiver guidance. Sponsored by both an engineering firm that helps design and repair bridges and his university to continue his work in engineering outreach to public school students, he flew for the first time a few weeks ago to a country he did not remember. After a successful D3 waiver approval, he is back in the United States, getting ready to work.
Attorneys sometimes ask whether getting a nonimmigrant visa with a D3 waiver is a short-term gain with no long-term plan. Will it leave the individual vulnerable in the future? That will vary, depending on the facts and the client’s comfort level. Even if we feel that a D3 waiver could help a client, we have a very serious talk again months later when the Form I-129 petition is approved, the consular appointment is booked, and it is time to travel. We have written an article going through many different fact patterns, and will continue to evaluate the new streamlined D3 pathway as more people travel.
For those who are fully undocumented, the immediate benefit of being able to work is transformative. For those who currently have a work permit through DACA, it may not make sense to apply for a D3 waiver immediately if the person plans to go back to school, change jobs soon, or if the current work position is unstable. However, based on new USCIS guidance, individuals may not trigger the unlawful presence bar if they depart the United States with advance parole. And those who do get a D3 waiver can then map out a plan to adjust status (perhaps through an I-601 if a parent adjusts) or serve out the ten-year unlawful presence bar in nonimmigrant status in the United States. Moreover, if a next administration or the Supreme Court ends the DACA program, being in H-1B status allows the person to keep working.
These stories illustrate the powerful, real-life impact of the new D3 guidance. It’s not just about policy changes on paper—it’s about creating opportunities for Dreamers who are now contributing their skills and expertise to the U.S. workforce. While only Congress can provide a permanent solution for all Dreamers, the D3 waiver policy guidance is a beacon of hope to be evaluated on a case-by-case basis. With each success, we see how this guidance is transforming lives and opening doors to opportunity, one waiver at a time.
If immigration attorneys have D3 waiver clients who will travel in 2024, please contact us so we can track them and offer advice. Given the long lead time necessary to prepare and file an H-1B or other work visa petition, we expect that broader use of the D3 pathway will not begin until next year.
Also, please help us get the word out. U.S. Senator Alex Padilla (D-CA) recorded a spot after the structural engineer returned successfully to the United States. And in addition to the Path2Papers website resources page, there is more information on the Higher Education portal and through the American Immigration Lawyers Association.
Krsna Avila is a senior staff attorney at Path2Papers.
Dan Berger is a senior staff attorney at Path2Papers and a partner at Green and Spiegel.
Stephen Yale-Loehr is an advisor at Path2Papers, a professor of immigration law practice at Cornell Law School, and of counsel at Miller Mayer in Ithaca, NY.
Copyright © 2024 by Krsna Avila, Dan Berger, and Stephen Yale-Loehr. All rights reserved. Contact the authors for permission to reprint.
An earlier version of this article originally appeared at https://www.aila.org/library/think-immigration-how-the-new-d3-waiver-guidance-is-unlocking-opportunities-for-dreamers-in-the-workforce