D-3 Waiver Guide for DACA Recipients: How to Apply for a Work Visa
Overview
On June 18, 2024, the Biden Administration announced a new immigration benefit for DACA recipients and other Dreamers (undocumented immigrants who came to the U.S. at a young age). This new policy provides a faster, more reliable temporary visa process for immigrants, including DACA recipients, with a job offer from a U.S. company and a higher education degree from a U.S. college or university.
On July 15, 2024, the Department of State issued updated directions to consular officers on when to recommend waivers for people—including DACA recipients and Dreamers—who have a U.S. degree, a job offer, and are approved for a temporary visa. The guidance strongly supports approvals of these waivers, and also supports giving them “expedited” processing so they get their waivers approved more quickly.
This could open up a faster, easier, and more reliable pathway for certain people who are undocumented to leave the U.S. and re-enter with a visa.
*Note: The updated D-3 waiver guidance is completely separate from the parole in place process that was announced at the same time.*
What is the D-3 Waiver?
The 212(d)(3) waiver, also called the “D-3 waiver,” helps immigrants, including people who are undocumented and DACA recipients, re-enter the country after applying for a temporary visa. Specifically, the D-3 waiver allows eligible individuals to obtain a visa and re-enter the country even if they face inadmissibilities, like having accrued “unlawful presence” in the U.S. We discuss this term below.
Who is Eligible for a D-3 Waiver?
Not everyone may need a D-3 waiver. If the person requesting the visa abroad doesn’t have inadmissibilities, they might not need the waiver. The D-3 waiver can help prevent individuals from being stuck outside the U.S., despite their inadmissibilities.
An individual who is eligible for a D-3 waiver must:
- Be approved for a temporary visa*
- Be present at a U.S. consulate or embassy abroad
- Not be inadmissible for national security or terrorist-related conduct
Temporary visas all have their own specific eligibility requirements. Read the explainers from Boundless to understand the eligibility requirements:
What’s the Process to Get a D-3 Waiver?
The D-3 waiver is only one step in a long process to go from being undocumented to obtaining a legal work visa. Here’s an outline of the process:
1. Get a Job Offer and Sponsorship
First, a person must qualify for and be sponsored for a temporary visa. For the purposes of this guide, we’ll focus on employment-based nonimmigrant (temporary) visas. Each employment-based temporary visa has different requirements, but most require a job offer from a U.S. employer. In general, you need an employer who is willing to hire and petition for you.
As a DACA recipient or someone without status in the United States, you are more likely to be approved for a temporary visa that allows for “dual intent,” which means that you can get the temporary visa even if you plan to later apply to stay in the U.S. permanently. The most common “dual intent” visa is the H-1B visa, which has fairly strict requirements (e.g. the job is a “specialty occupation” that usually requires a bachelor’s degree or above).
If you are currently employed or looking for a job, talk to your employer about sponsorship options. Consider sharing this resource from FWD.us with your employer—it is a guide with information on how they can support their employees through sponsorship and other immigration support.
2. Employer Files a Petition, You Apply for a Visa
Once the employer has filed a petition to sponsor you and is approved, you would make preparations to depart the U.S. You will need to apply for your visa and go through “consular processing” at a U.S. consulate or embassy, usually in your home country.
You should also apply for advance parole before leaving if it is available to you, particularly for DACA recipients, TPS holders, and other people with temporary protections. This is an important protection in case anything goes wrong, so you can at least return to your current status—and in some cases, advance parole may allow you to return without needing a waiver.
3. Attend the Visa Interview
When going through consular processing, an officer may find that you are “inadmissible,” meaning there is something in your immigration history that does not allow you to get a visa. At this point, you can request to file a D-3 waiver, which would allow you to get your visa even though you are “inadmissible.” Note that there are certain grounds of inadmissibility that the D-3 waiver cannot waive, such as grounds related to national security and terrorism, and that it is completely up to the consular officer’s discretion if they want to recommend your waiver.
The new guidance, described below, says that officers should generally approve your waiver if you have a degree from a U.S. college or university and you’re coming to work in the field of your degree .
The consular officer, who works for the Department of State (DOS), can only recommend that you get a waiver, they do not approve it themselves.
4. D-3 Waiver Recommendation
The recommendation is sent to Customs and Border Protection (CBP), under the Department of Homeland Security (DHS)—they are the ones who would ultimately approve your waiver. This can take many months, but with expedited processing, can hopefully happen in a matter of days.
5. Visa Approval and Return to the U.S.
If the waiver is approved, your visa can be approved, and you can travel to the U.S., where a CBP officer will review your visa and allow you to re-enter the U.S. in a lawful status.
*NOTE: Leaving the U.S. for any reason as a person who is undocumented carries very real risks. It is very important to work with an attorney or legal expert that you trust before you file any applications or leave the U.S.
What is “Unlawful Presence”?
A person has “unlawful presence” when they stay in the U.S. without legal authorization. This can happen by overstaying a visa, entering without inspection, or violating the terms of their visa. It can also begin when temporary protections like DACA or Temporary Protected Status (TPS) expire without being renewed, or if they stay in the U.S. after an immigration judge issues a removal order.
The consequences of accruing unlawful presence are significant, including potential three- or ten-year bars from re-entering the U.S. after leaving, which impacts future immigration opportunities. The three- or ten-year bars are some of the most common “inadmissibilities” that undocumented immigrants living in the U.S. face when trying to apply for lawful status. For purposes of the three- or ten-year bars, minors under the age of 18 or those with pending asylum applications do not accrue unlawful presence. Moreover, persons who have temporary protections like DACA do not accrue unlawful presence so long as their DACA remains valid.
If a DACA recipient or undocumented person has a job offer and is approved for a temporary work visa, they will have to leave the U.S. to get their visa. If they had unlawful presence before leaving, they might be barred from re-entering and will be stuck outside the U.S., unable to get their work visa or to return. The D-3 waiver can help prevent individuals from being stuck outside the U.S., despite their inadmissibilities.
What’s New?
The Department of State has given their immigration officers new guidance about when they should recommend D-3 waivers for certain people. The process for applying for a D-3 waiver remains the same, but the new guidance should help people predict if they can receive a waiver, and to make the process happen faster.
The existing guidance for officers says that D-3 waivers should be recommended if the person applying for the visa is eligible for their visa and if giving them a waiver is in the the U.S.’ public interest. This waiver is supposed to be used to support “freedom of travel, exchange of ideas, and humanitarian considerations.”
The updated guidance adds very clearly that approving visas for people who have a degree from a U.S. college or university, or who have credentials to work in skilled labor, and who are going to work in the U.S., would have a positive effect on the U.S.’ interests. This strongly favors them to be recommended for a waiver.
The new guidance also says that there is a “clear and significant U.S. public interest” to request an expedited, faster approval process for their waiver requests.
Frequently Asked Questions
With a D-3 waiver, DACA recipients, Dreamers, and other undocumented immigrants can apply for and get temporary work visas even if they have inadmissibilities that would normally lead to a visa denial. The updates to the D-3 process means that people can be more certain about having a waiver approved if they need one, and should speed up the process.
Any degree from a U.S. college or university would make your request for a D-3 waiver more likely to be approved.
However, you also need to qualify for the work visa itself, and that might need a higher level of degree. For example, the H-1B visa, the most likely visa to work with a D-3 waiver, usually requires at least a bachelor’s degree, or above. An associate’s degree would likely not be a high enough level of education to get an H-1B visa.
Under the new guidance, you can be recommended for a D-3 waiver if you have earned credentials to perform skilled work in the U.S.
However, you still need to be approved for a visa, which often requires a degree (for example, H-1B jobs generally require a bachelor’s degree or above). You will need to review the requirements for the visa to see if you qualify.
Depending on where you will be processing, interview wait times might be many months, and the time to process the D-3 waiver recommendation can also take months after.
However, the Administration is working to cut wait times for interviews, and the new guidance should make the waiver requests happen faster, too.
For better estimates on how long it will take to get an interview appointment, you can visit this page.
D-3 waivers can be used for any temporary visa.
Visas that are “dual intent” are the most likely for people who are already living in the U.S., since they won’t have to prove that they plan to leave after the visa time is over.
The law clearly says that H-1B and L-1 visas are “dual intent”. O-1 “extraordinary ability” and R-1 religious worker visas might be considered dual intent, as could the TN visa for certain Mexican and Canadian nationals, but the law is less clear on those. You will need to speak with a trusted attorney or legal expert about the best visa type to fit your qualifications, your immigration history, and your future plans.
Advocates are urging DHS to publish more information on those visa types soon.
Each visa has a maximum amount of time for which it can be issued. The officers who approve your visa and admit you into the country should tell you how long your visa is valid for. Some visas can be renewed, some multiple times.
For example, H-1B visas are issued for a maximum of three years at a time, and can be renewed once, for a total of six years of stay. However, you may be able to stay in H-1B status longer in some cases (for example, if your employer files a PERM application to sponsor you for a green card at least one year before your six years are over, but you are waiting in the green card backlog).
You will need to check the specific details for each visa type to see how long your maximum stay might be.
Leaving the U.S. to get a visa could trigger the 3 and 10 “unlawful presence” bars for certain persons.
If someone has accrued more than six months but less than one year of unlawful presence, and they then leave the U.S., they are not allowed to re-enter the U.S. for three years. If they have one year or more of unlawful presence, they are barred from re-entering for ten years. These bars are an “inadmissibility.” Persons who are under eighteen years of age do not accrue unlawful presence for purposes of the three- or ten-year bars and persons with DACA do not accrue unlawful presence while their DACA remains valid. This means that some people might not need a D-3 waiver for purposes of the three- or ten-year bars.
If you do have to worry about the three- or ten-year bars, the D-3 waiver allows you to re-enter the U.S. But it does not remove the bar for purposes of a green card. The time on the bar started counting as soon as you left the U.S., and will continue to count, even if you re-enter the U.S. with a D-3 waiver.
The unlawful presence bars could stop you from being able to adjust your status to a green or changing to another status in the future, until the time on them counts all the way down. That means you will need to wait the full three or ten years before that inadmissibility goes away.
Individuals who depart the U.S. with advance parole may not trigger the bars in some cases; however, there is no clear guidance on this from the government right now, and it is mostly up to the officers who will be reviewing your visa application and admitting you back into the U.S. While this is a possibility, you should be prepared for the bars to trigger when you depart.
*Leaving the U.S. for any reason as a person who is undocumented carries very real, significant risks. It is very important to work with an attorney or legal expert to look at the specifics of your own case.
If your DACA expires after your 18th birthday and you don’t renew it on time, you may begin to accrue unlawful presence the day after your DACA expires. It’s important to note that if you accrue more than 180 days of unlawful presence, it could trigger a bar from re-entering the U.S. if you leave the country in the future.
To avoid this, make sure to renew your DACA between 120-150 days before your expiration date. If you let your DACA expire for more than a year, you will have to apply as a first-time applicant, which is currently not being processed.
Anyone who is eligible for advance parole should apply for it before leaving the U.S. to use this process. Advance parole acts as a safeguard, giving you an option to return to the U.S. in your current status if needed. In some cases, advance parole may make it so you do not even need the D-3 waiver to return.
However, you do not need advance parole for this process, and you can still use this process if you are not eligible for advance parole.
*Leaving the U.S. for any reason as a person who is undocumented carries very real, significant risks. It is very important to work with an attorney or legal expert to look at the specifics of your own case.
Yes. People who are undocumented in the U.S., even if they have a temporary protection like DACA or TPS, generally need to leave the U.S. and “consular process” to receive a visa and re-enter the U.S. with a legal visa. The D-3 waiver is requested at a U.S. consulate or embassy in another country.
*Leaving the U.S. for any reason as a person who is undocumented carries very real, significant risks.
There is no guarantee before leaving that you will be approved for a D-3 waiver or for your visa. Even the visa and waiver do not guarantee that you will be allowed to re-enter the U.S. at the border or at an airport. If you are subject to immigration bars, you could be prevented from re-entering the U.S. for many years.
It is very important to work with an attorney or legal expert that you trust before you file anything or leave the U.S.
The D-3 waiver can help you on your path to citizenship.
With a D-3 waiver, you can leave the U.S. and re-enter in a legal, temporary status. From there, you could adjust to a permanent status and get a green card, if you have an employer or immediate relative to sponsor you. After getting your green card, you may be eligible to apply for citizenship.
However, the D-3 waiver may not fix all of the issues with your immigration history, like certain immigration bars. You should speak to a trusted attorney or legal expert to look at the specifics of your case and determine if a pathway to citizenship is available for you.
The D-3 waiver is not only for DACA recipients and Dreamers; anyone who is approved for a temporary visa can request a D-3 waiver.
DACA recipients are usually strong candidates for D-3 waivers because most have grown up in the U.S., earned college degrees, and are currently working. But other people who are undocumented, even if they do not have DACA, can be sponsored for a work visa and can get a D-3 waiver.
Even if you do not have a college degree or work credentials, you might also be eligible for a waiver. You should speak to a trusted attorney or legal expert about the specifics of your case.
Your employer can choose to sponsor you for a visa.
If they have not already told you whether they will sponsor employees for visas and what the process is, you should ask a trusted leader at the business about their policy. This might be a person in a department like Human Resources or Global Mobility, it might be the head of your team or division, or it might be the person who runs the business.
Remember that an employer cannot discriminate against you because of your immigration status. However, an employer can refuse to hire you if you would need sponsorship to work legally in the country.
Consider sharing this resource from FWD.us with your employer—it is a guide with information on how they can support their employees through sponsorship and other immigration support.
Your employer is responsible for filing the petition to sponsor you for a temporary employment-based visa. They will submit the paperwork and required fees to U.S. Citizenship and Immigration Services, proving that you and the job you are filling are eligible for the visa. They may also need to file for a Labor Certification Application from the Department of Labor.
You are responsible for all of the steps related to actually receiving your visa, including filing your visa application, presenting yourself at a consulate or embassy abroad, and applying to re-enter the U.S. with your visa.
If your employer chooses later to sponsor you for a green card, they will again have to file more paperwork to show that you and your job are eligible for that immigration category.
- Easing the Nonimmigrant Visa Process for U.S. College Graduates
- DACA Recipients, Dreamers and the 212(d)(3) waiver
- Streamlining D-3 Waivers for DACA Recipients, Dreamers & Others – Fwd.us
- D-3 Waivers – Presidents’ Alliance
- Understanding Biden’s Updated Guidance on the D-3 Waiver – Boundless
- Guide: Returning to the U.S. After Leaving – Immigrants Rising
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