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IMMIGRATION JULY 05, 2024 | The Indian Eye 42

The Uncertain Path of the D-3 Waiver

for DACA Recipients under Biden’s New

Immigration Initiative

BY CYRUS D. MEHTA AND evaluate these applications on many grounds of inadmissibili- prior to the commencement recipients, and their prospec-
KAITLYN BOX* a case-by-case basis, and will ty, including the 3 and 10 year of proceeding is inadmissible tive employers, currently have
little assurance that a D-3
if they seek admission within
bars that arise from unlawful
afford approved applicants a
n June 18, 2024, the three-year period in which to presence. In a news release cor- 3 years from the date of de- waiver will be granted when
parture. Under INA § 212(a)
they leave the country for con-
Biden administration apply for permanent residence. responding with the Biden ad-
Oannounced two new The other process will ministration’s announcement, (9)(B)(i)(II) a person who has sular processing. If the waiver
immigration initiatives aimed enable Deferred Action for the U.S. Department of State been unlawfully present for is not granted, the DACA re-
at keeping families together. Childhood Arrivals (DACA) – Bureau of Consular Affairs more than one year, and who cipient could be stranded out-
The first is a “parole in place” recipients to more easily obtain stated: “As part of this initia- again seeks admission with- side the U.S. for up to 10 years.
Importantly, an individual
in 10 years from the date of
program which will provide a employment-based visas. The tive, the Department will clari-
pathway for undocumented measure will allow “DACA re- fy existing guidance to consular the departure is inadmissible. can typically only spend a lim-
spouses of U.S. citizens to be- cipients and other Dreamers, officers related to when they Minors do not accrue un- ited amount of time in an em-
come lawful permanent res- who have earned a degree at an should consider recommend- lawful presence under INA§ ployment-based nonimmigrant
idents (LPRs). In order to be accredited U.S. institution of ing that DHS grant a waiver 212(a)(9)(B)(iii)(I), so a status – for an H-1B nonimmi-
grant the maximum is 6 years
DACA recipient who applied
eligible, the noncitizen spouse higher education in the United of ineligibility, where applica-
must have entered the U.S. States, and who have received ble… These clarifications will for and received DACA before – so DACA recipients who
without admission or parole an offer of employment from a describe when consular offi- the age of 18.5 years would not obtain an employment-based
and hold no immigrant or non- U.S. employer in a field related cers should consider recom- trigger the 3- or 10- year bars. visa such as an H-1B will also
immigrant status, and “must to their degree, to more quickly mending that the Department Since the grant of DACA stops need to find a path to remain in
the U.S. on a long-term basis,
the accrual of unlawful pres-
– as of June 17, 2024 – have receive work visas.” Although of Homeland Security waive
resided in the United States many details about this mea- ineligibility for these applicants ence, they would have accrued including being sponsored for
for 10 or more years and be le- sure are still forthcoming, it ap- on an expedited basis, in con- less than 180 days of unlawful permanent residence by their
gally married to a U.S. citizen, pears to involve the expedited junction with visa applications presence. An individual who employer. Even if the DACA
while satisfying all applicable issuance of an INA § 212(d) overseas. However, the pro- obtained DACA after the age recipient has received the D-3
waiver, this waiver only waives
of 18.5 years and before 19
legal requirements.” DHS will (3) waiver (D-3), which waives cessing steps will remain the
same.” The Foreign Affairs would trigger only the 3- year the ground of inadmissibility
Manual (FAM) will also bar, having accrued more than for the temporary nonimmi-
be updated to “encour- 180 days but less than one year grant admission. If the DACA
age consular officers to of unlawful presence. DACA recipient is sponsored for per-
consider recommending recipients who obtained the manent residence, the bars
expedited review of waiv- benefit after the age of 19 at INA § 212(a)(9)(B) will
er requests in conjunction would have been unlawfully continue to trigger if the ap-
with certain nonimmi- present in the U.S. for a year plicant applies for adjustment
grant visa applications or more, and would face the of status or applies for an im-
overseas, consistent with 10-year bar. Individuals could migrant visa overseas. Hence,
existing Department reg- enroll in the DACA program they will need to wait for 3 or
ulations and guidance… up until they reach age 31, and 10 years before they can get
This will result in certain participation in the program admitted as lawful permanent
individuals to potentially was highest among those who residents. Under USCIS poli-
more quickly receive work were well over 18, so many cy, the 3 and 10 year bars can
visas if DHS approves a DACA recipients will unfortu- be spent in the US, which we
waiver of ineligibility.” nately face the full 10-year bar. have extensively discussed in
Although DACA The question of whether a prior blog. The question is
recipients can at present or not the waiver will be grant- how can one wait for 10 years
apply for a D-3 waiver in ed is also a purely discretionary in lawful nonimmigrant status
order to obtain an em- determination made by a con- in the US before they can ap-
ployment-based nonim- sular officer, and the waiver ply for adjustment of status?
migrant visa, this process application can take months Many DACA recipients
is rarely used in practice. to be adjudicated. The Foreign are natives and citizens of Mex-
When a DACA recipient Affairs Manual directs consul- ico or South American coun-
who has been unlawful- ar officers to “consider the fol- tries such as Guatemala, Hon-
m of ly present in the United lowing factors, among others, duras, or El Salvador, so they
CYRUS D. MEHTA & PARTNERS PLLC States for a lengthy period when deciding whether to rec- are likely to be eligible to file an
ommend a waiver: The recency
of time leaves the United
employment-based adjustment
States to apply for an em- and seriousness of the activity of status application much

ployment-based visa at a or condition causing the appli- more quickly than a beneficia-
U.S. consulate abroad, cant’s ineligibility; The reasons ry from a backlogged country

  they are likely to trigger for the proposed travel to the such as India or China. In the
   
­ the 3- or 10-year bars pur- United States; and The posi- June 2024 Visa Bulletin, for ex-
€
‚   suant to INA § 212(a)(9) tive or negative effect, if any, ample, the Final Action Date
(B).Under INA § 212(a) of the planned travel on U.S. for the employment-based
(9)(B)(i)(I) a person who public interests. Whether there third preference category (EB-
3) is November 22, 2022 for In-
is unlawfully present for
is a single, isolated incident or
more than 180 days but a pattern of misconduct; and dia and the “rest of world”, but
2 6th Floor less than 1 year, and who Evidence of reformation or for India it is August 22, 2012.
voluntarily departs the US rehabilitation.” Thus, DACA However, §104(c) the Ameri-

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