On June 18, President Biden announced an executive order aimed at streamlining the D-3 waiver process for foreign-born college graduates and DACA recipients. This move is part of the administration’s broader effort to make the immigration system more efficient and predictable, particularly for foreign graduates of U.S. colleges and universities who have job offers in fields related to their degrees. The executive order updates guidance for consular officers to expedite the waiver process and emphasizes the importance of these individuals to the U.S. workforce and economy.
What is the D-3 Waiver?
The D-3 waiver is a type of waiver of inadmissibility that allows certain undocumented immigrants, including DACA recipients, to obtain a temporary work visa. This waiver is crucial for DACA recipients who cannot adjust their status within the U.S. and must travel abroad to apply for a visa. The waiver helps these individuals re-enter the U.S. legally, allowing them to transition to work visas such as the H-1B visa.
Here’s how it might work in practice: Consider a scientist who is a DACA recipient working in a U.S. research lab. The lab agrees to sponsor the scientist for an H-1B visa. However, the scientist cannot adjust status directly within the U.S. Instead, they must travel to a U.S. consulate abroad to apply for the H-1B visa. At the consulate, they must disclose any periods of unlawful presence in the U.S. If the scientist had accrued unlawful presence as an adult, they would need to apply for a D-3 waiver to obtain the H-1B visa and re-enter the U.S. legally. Once the D-3 waiver is approved, the scientist can receive the H-1B visa stamp and return to the U.S. to continue their employment.
Why Did the D-3 Waiver Need an Update?
The D3 waiver process has up until now been confusing, slow, and unpredictable, causing frustration for applicants and their U.S. employers. An application on average takes several months to more than a year to be approved.
What the Updated Guidance Says
The updated guidance asks that consular officers weigh certain factors when deciding whether or not to grant a D3 waiver, including:
- Recognize that applicants who are graduates of U.S. institutions or have skilled labor qualifications have a positive effect on U.S. public interests, particularly applicants who wish to reenter the U.S. to start or continue employment in a field related to their degree.
The guidance encourages consular officers to expedite the application and approval process for these applicants.
How Employers Can Help Employees
Employers play a key role in supporting employees through the D-3 waiver process. Here are some steps employers can take:
- Educate and Inform: Spread the word about the significance of the D-3 waiver and the updated guidance. Ensure that all relevant departments, including HR and legal, are aware of these changes.
- Identify Eligible Employees: Survey your workforce to identify employees who might benefit from the D-3 waiver. Offer screenings and support to those eligible.
- Provide Resources and Support: Share resources about the D-3 waiver process and offer assistance in preparing the necessary documentation. Consider providing legal support or consulting services to help navigate the process.
- Create a Supportive Environment: Encourage a community among DACA employees and others who might need the D-3 waiver. Facilitate networking and peer support to help individuals through the process.
How Employees Can Approach Their Employers
Employees who need a D-3 waiver should take the following steps:
- Understand Your Employer’s Policies: Review your company’s immigration policies and procedures. Make sure they are clear and accessible.
- Reach Out to HR or Management: If you feel comfortable, discuss your situation with HR or your manager. Explain the importance of the D3 waiver and how the updated guidance can benefit both you and the company.
- Seek Allies: Find colleagues who have gone through similar processes or who are knowledgeable about immigration issues. They can provide support and advice.
- Be Proactive: Stay informed about the latest developments in immigration policies and share relevant information with your employer. Proactively seek assistance and resources to help navigate the D-3 waiver process.
Helpful Resources
Video Briefing on the Significance of the Updated D-3 Waiver for College Grads