A new immigration policy that may provide Deferred Action for Childhood Arrivals (DACA) holders greater access to H-1B visas and other employment options was announced by President Biden. Under the new policy, undocumented immigrants who are not eligible for DACA may also have pathways to employment. Further, existing authorities and aid for these individuals would be streamlined. Although DACA is closed to new applicants, the program continues for current recipients. Per the policy, the State Department and the Department of Homeland Security (DHS) would enable DACA holders and those without a legal status to apply for an employment-based temporary visa or H-1B.

Currently, DACA recipients require a D-3 waiver to reenter the country with an H-1B or other employment-based temporary visa. The D-3 waiver limits many grounds of inadmissibility, including unlawful presence. Anyone in the U.S. without a lawful status for one year or longer is generally barred for ten years if they leave and try to reenter. The D-3 removes that limitation. However, the waiver cannot be requested in advance. Therefore, individuals do not know if they will be allowed to return when they leave.

Under the new policy, the State Department suggests consular officers consider recommending expedited waiver review requests alongside some nonimmigrant visa applications overseas. Effectively, individuals may receive work visas more quickly so employers can make informed decisions and streamline the process so individuals who qualify for employment visas can more quickly get to work.

Roughly 25% of H-1B registrations are selected in the annual lottery. Even those eligible for the D-3 waiver face a low probability of receiving the visa. However, individuals hired by universities and nonprofit and government research institutes in H-1B roles are exempt from the annual limit. If a DACA recipient receives a D-3 waiver and gain H-1B status, they may be eligible for permanent residence status if their employer agrees to sponsor them.

ILBSG actively monitors ongoing updates to U.S. immigration policy. If you have questions about an H-1B visa or any employment-based or family-based immigration issue, contact us. We work with our clients to ensure they get the right advice.

daca Employment Authorization Undocumented Individuals