On June 25, 2024, President Joe Biden unveiled plans to expedite approval of work permits for those in the Deferred Action for Childhood Arrivals (DACA) program.
The new DACA policy will allow recipients who have graduated from an accredited university and have an offer by a US employer for a highly skilled job to quickly qualify for one of the existing temporary work visas, such as an H-1B visa and other employment routes. The State Department has announced it will update guidance to consular officers in the Foreign Affairs Manual within 30 days to implement the new policy.
Updated Guidance on Work Permit Applications for DACA Recipients
The change seeks to streamline existing regulations and assist undocumented immigrants who are not eligible for the DACA program.
Currently, the process for DACA recipients, and others needing a waiver to obtain a temporary visa, is protracted and inefficient. DACA recipients need a D-3 waiver (Immigration and Nationality Act §212(d)(3) waiver) to reenter the country on an H-1B visa or other employment-based temporary visa. This waiver excuses certain grounds of inadmissibility to the US, including unlawful presence. Individuals who have been in unlawful status for a year or more face a ten-year reentry bar if they leave the US. However, obtaining an approved D-3 waiver lifts this restriction when applying for a temporary visa. This means that with a waiver, they can then apply for an H-1B visa and, if granted, reenter the US with valid nonimmigrant status and work authorization.
The new policy will direct the State Department and the Department of Homeland Security to enable DACA recipients and others without legal status to obtain H-1B or other employment-based temporary visas.
Impact of the New Policy
While it is hoped the new policy will provide relief and create a clearer path for individuals to obtain lawful employment status, the potential impact is likely to be limited since only around a quarter of H-1B registrations are selected in the annual H-1B cap lottery. As such, even if eligible for a D-3 waiver, the applicant must still be eligible for the H-1B visa and be successful in the lottery, unless they qualify under the cap-exempt rules.
As alternatives, the TN category may be an option for DACA recipients or other undocumented immigrants if they were born in Mexico or Canada, or the L-1 visa could be available, if they could work in a company’s overseas operations and later return to the US once eligible for the visa with the D-3 waiver.
President Biden’s announcement also included details of a program offering a path to citizenship for hundreds of thousands of undocumented immigrants married to US citizens.
Need Assistance?
As US work visa specialists, NNU Immigration can advise your organization on the impact of the new policy on your US-bound talent mobility program. For expert guidance, contact us.
This article does not constitute direct legal advice and is for informational purposes only.
Author
Founder & Principal Attorney Nita Nicole Upadhye is a recognized leader in the field of US business immigration law, (The Legal 500, Chambers & Partners, Who's Who Legal and AILA) and an experienced and trusted advisor to large multinational corporates through to SMEs. She provides strategic immigration advice and specialist application support to corporations and professionals, entrepreneurs, investors, artists, actors and athletes from across the globe to meet their US-bound talent mobility needs.
Nita is an active public speaker, thought leader, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals.
