Streamlining 212(d)(3) Waivers
for DACA Recipients, Dreamers, and Others

The Biden administration recently announced that it will be taking steps to improve the process for DACA recipients, Dreamers, and other eligible individuals to receive nonimmigrant employment-based visas. The Departments of State (DOS) and Homeland Security (DHS) are expected to issue updated policy directions soon.

This policy brief explains how the 212(d)(3) waiver, also known as the D-3 waiver, can help qualified individuals, including DACA recipients and Dreamers, receive a nonimmigrant visa without being stuck outside of the U.S. for many years because of immigration bars, and identifies meaningful improvements the administration can implement to streamline that process and increase participation.

Access to employment-based visas could be life-changing for many DACA recipients and other Dreamers. While current DACA recipients have work authorization, that program could be ended by the Supreme Court within a year, forcing more than 400,000 people out of their jobs. There are also tens of thousands of Dreamers now graduating from college who are eligible for DACA but cannot apply because the program is frozen, and thousands of Dreamers graduating high school each year who are permanently ineligible because they cannot meet the arrival date requirement.

Many DACA Recipients Could Qualify for Employment Visas

Many Dreamers (immigrants who came to the U.S. as children) have the requisite education, training, and even existing employment relationships to qualify for nonimmigrant, or temporary, employment-based visas, including H-1B “specialty occupation” visas. This is particularly true for individuals enrolled in or eligible for Deferred Action for Childhood Arrivals (DACA).

FWD.us estimates that nearly half (49%) of DACA recipients have some college education, with many still working to complete their education. Some 40,000 have an associates degree from a community or technical college. Additionally, an estimated 70,000 have a bachelor’s degree, while 17,000 have an advanced degree.¹

If they were sponsored by their employer for a visa, they could secure a legal status and more reliable and secure work authorization. Certain visas, like H-1Bs, could even open pathways to permanent residency and the chance to apply for citizenship. And their employers would have certainty that they would be able to retain and invest in talented, valued members of their team for years to come.

Unfortunately, too few people have pursued this option, in part because of the risk and uncertainty surrounding the visa process, which could result in their being stuck outside of the U.S. for years. The D-3 waiver is an important part of this process, and improving it could reduce that risk.

212(d)(3) Nonimmigrant Visa Waivers Resolve Prior Immigration Issues

DACA recipients, Dreamers, and other individuals are generally required to depart the U.S. and apply at a consulate or embassy to be readmitted with a nonimmigrant visa. However, the fact that they have lived in the U.S. undocumented, even if they now have DACA, could trigger an immigration bar preventing them from re-entering for up to ten years.

The 212(d)(3) nonimmigrant visa waiver² can resolve these immigration bars and certain other inadmissibility issues that might result in a visa being denied. The waivers are discretionary and weigh factors like the recency and seriousness of previous immigration violations, reasons for seeking a visa, and the positive impacts of their admission. It is a critical tool for which many Dreamers should certainly qualify.

But the current D-3 waiver process is very risky and uncertain, diminishing participation. Leaving the U.S. in the first place is a huge risk, as applicants do not find out until after they have already left the U.S. if their waiver will be approved. They could apply for a waiver only to find out they are now barred from returning for a decade, even permanently, And appointment times and processing times vary greatly in different parts of the world, with some posts facing months-long delays.

The possibility that they may be separated for many years from their children and families, as well as their work, makes it extremely difficult for Dreamers and their employers to gamble on this pathway.