Featured Issue: Affirmative Relief Changes for DACA Recipients and Other Dreamers
On June 18, the White House announced that individuals, including DACA recipients and other Dreamers, who have earned a degree at an accredited U.S. institution of higher education in the United States, and who have received an offer of employment from a U.S. employer in a field related to their degree, will be able to more quickly receive work visas.
Eligibility and Process for D-3 Waivers for the Three- and Ten-Year Bars of Dreamers
Read FAM Guidance Updated on July 15, 2024
DOS provided the following FAQs:
Q: What will these process clarifications mean for current NIV ineligibility waiver processing steps?
- These clarifications will describe when consular officers should consider recommending that the Department of Homeland Security waive ineligibility for these applicants on an expedited basis, in conjunction with visa applications overseas. However, the processing steps will remain the same.
- Waiver requests are adjudicated by the Department of Homeland Security, U.S. Customs and Border Protection’s Admissibility Review Office.
- For additional information related to visa ineligibility waivers, please visit our website: Ineligibilities and Waivers: Laws (state.gov).
Q: If an applicant needs a visa ineligibility waiver, how can they request one as part of a standard interview?
- Applicants who are denied a visa will generally be notified by the consular officer of the basis for the ineligibility, and whether they are eligible for a waiver of their ineligibility.
- If an applicant is ineligible for a visa based on certain grounds of inadmissibility in Section 212(a) of the Immigration and Nationality Act, they may be eligible for a waiver.
- Waiver requests are adjudicated by the Department of Homeland Security, U.S. Customs and Border Protection’s Admissibility Review Office, based on a recommendation from the Department of State.
- For additional information related to visa ineligibility waivers, please visit our website: Ineligibilities and Waivers: Laws (state.gov)
- For questions related to waiver approvals, we refer you to the Department of Homeland Security.
Q: How will forthcoming edits to the Foreign Affairs Manual (FAM) clarify existing guidance to consular officers?
- Upcoming FAM updates will clarify when consular officers should recommend that DHS grant a waiver of the applicant’s ineligibility, consistent with the waiver process that is already available under existing law to individuals seeking nonimmigrant visas, and consistent with Department regulations that describe the types of cases in which consular officers should consider recommending a waiver of ineligibility. It is not conferring any new benefits and is not limited to DACA recipients.
- These updates will also encourage consular officers to consider recommending expedited review of waiver requests in conjunction with certain nonimmigrant visa applications overseas, consistent with existing Department regulations and guidance.
- This will result in certain individuals to potentially more quickly receive work visas if DHS approves a waiver of ineligibility.
- While leaving the United States to apply for a visa is not without risks, this 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.
Key Resources on This Program
Browse the Featured Issue: Affirmative Relief Changes for DACA Recipients and Other Dreamers collection
Think Immigration: How the New D3 Waiver Guidance Is Unlocking Opportunities for Dreamers in the Workforce
AILA Members Krsna Avila, Dan Berger, and Stephen Yale-Loehr share two “D3 waiver” success stories and highlight the Cornell Law School effort to advise eligible clients and track progress under the updated guidance issued by the Biden Administration earlier in the summer.
Free Preview of AILA Waivers Online Course: Nonimmigrant Inadmissibility and Relief under INA §212(d)(3)(A)
As a special benefit for AILA members and in light of the new parole-in-place options due to the executive actions to promote family unity and help Dreamers, AILA is providing this free preview of the AILA Waivers Online Course.
The New D3 Waiver Process: A Tool to Help Over One Million Dreamers
Path2 Papers provides an article that explains how the enhanced D3 program works and recommends that it be discussed with and considered by all Dreamers who have or are considering a college degree. The authors encourage attorneys to carefully consider the new D3 pathway for their clients.
Sponsoring DACA Recipients and Other Dreamers for Employment-Based Visas
Advocates provide a guide intended for leaders and administrators at institutions of higher education who are interested in learning how to support prospective and current employees who are not U.S. citizens, including DACA recipients, with employment-based immigration pathways.
Call for Examples: Current Section 212(d)(3) Waiver Processing
AILA would like to compile data on member experiences in applying for D-3 waivers pursuant to the President’s June 18 announcement and recent DOS guidance. Please complete the following Call for Examples so that AILA can assess the manner in which the initiative is being implemented.
Practice Alert: Updated FAM Guidance Related to 212(d)(3) Waivers
The DOS Liaison Committee provides a more detailed look at the new FAM updates related to 212(d)(3) waivers after DOS released its clarifying guidance and updated the FAM.
Practice Alert: Sample Email Requesting Expedited Processing of D3 Waiver
AILA provides a sample email requesting expedited processing of a pending 212(d)3 waiver due to new FAM guidance issued on 7/15/24.
Streamlining Dreamers’ Access to Employment-Based Visas Using D-3 Waivers: What You Need To Know
The Presidents' Alliance, TheDream.US, and Cornell Law School provided information on why Dreamers are eligible for employment-based visa options, the obstacles that DACA recipients and other Dreamers face in accessing such visas, what are D-3 waivers, why they are needed, and more.
DOS Provides Updated FAM Guidance on Processing Waivers
DOS provides updated FAQ guidance on processing waivers, including 212(d)(3)(A) waivers.
DOS Issues Guidance on Easing the Nonimmigrant Visa Process for U.S. College Graduates
After the White House announced actions to allow certain individuals to receive nonimmigrant work visas more quickly, DOS clarified existing guidance to consular officers regarding when they should consider recommending that DHS grant a waiver of ineligibility, where applicable.
Briefing: New Executive Actions to Streamline D-3 Waivers and Employment Visas for College Grads, Including Dreamers
Watch the recording from a briefing from the Presidents’ Alliance, TheDream.US, and partners that discussed the significance of the executive actions to streamline D-3 waivers and access to employment-based visas for eligible college and university graduates.
Watch the Recording: The President’s Executive Actions Promoting Family Unity and Dreamers
Watch this free recording of AILA leadership, staff, and experts discussing the President’s announcement on using parole-in-place to promote family unity and leveraging INA 212(d)(3) waivers for U.S. college-educated DACA recipients and Dreamers.
General Waiver for Nonimmigrants: Processes and Procedures
AILA provides an excerpt from the 4th edition of The Waivers Book, discussing INA §212(d)(3) waivers.
White House Fact Sheet: New Immigration Actions: Support for Families and Streamlined Work Visas
The White House provides a fact sheet on President Biden’s new actions, including the ability for long-term noncitizen spouses and children of U.S. citizens to apply for permanent residency without leaving the U.S. and a streamlined process for work visas for U.S. college grads and Dreamers.
DHS Statement on the Biden-Harris Administration’s Actions to Keep American Families Together
The DHS secretary issued a statement on the Biden-Harris Administration’s actions to keep American families together and to streamline a pathway for Dreamers to access waivers relating to high-skilled labor visas for which they are qualified.
Talking Points for AILA Members on Streamlining Dreamers’ Access to Employment-Based Visas
AILA members may find these Talking Points useful if asked by reporters or others about the June 18, 2024, announcement on administrative action that streamlines access to employment-based visas for eligible DACA recipients and other Dreamers.
Practice Pointer: Nonimmigrant Visa Waiver Authority under Section 212(d)(3)(A) and Consent to Reapply
AILA’s DOS Liaison Committee provides this resource on the authority to grant waiver relief given to consular officers under 212(d)(3)(A).
When Can the 212(d)(3) Waiver Be Used?
This video will explore in what circumstances the 212(d)(3) waiver can be used.
Speaker: Camiel Becker
How to Apply for the 212(d)(3) Waiver to the Consulate
This video will demonstrate how to prepare a 212(d)(3) waiver, and how it is submitted to the US Consulate.
Speaker: Camiel Becker
Practice Pointer: Validity of Visas and INA §212(d)(3)(A) Waivers
AILA’s DOS Liaison Committee provides information on the factors considered when a consular officer recommends a waiver under INA §212(d)(3)(A), and discusses the validity period of these waivers in contrast to the period given for a visa.
CBP Instructs Field on 212(d)(3) Waivers
A 4/8/04 memo from Jayson Ahern, CBP Assistant Commissioner, regarding jurisdiction over, and process for, section 212(d)(3) waivers.