Individuals who hold DACA work authorization are lawfully entitled to stay in the US and work for US employers. They also may be eligible for traditional work visas like H-1B and O-1. However, many DACA recipients have not lawfully maintained presence in the US and would be subject to a three year or ten year bar from entering the US if they were to leave and apply for a visa stamp at a consulate. 

The Biden Administration announced they will clarify and smooth out the process of getting a nonimmigrant D-3 waiver for these affected individuals. These waivers allow individuals to get a visa who are otherwise found ineligible for one. The Department of State has amended the Foreign Affairs Manual (the guidance document for reviewing visa applications at consulates) to better direct and clarify the process for DACA recipients applying for D-3 waivers. The Presidents’ Alliance on Higher Education and Immigration has released a great explainer on how these waivers work and will change.

These FAM updates 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 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 hopefully result in eligible 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 clarifies 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.

Meltzer Hellrung Guidance

These revisions should encourage employers to support DACA employees to apply for traditional work visas, including H-1B and O-1.