Analysis of President Biden’s Executive Action for DREAMERS

Judge stamping work visa

What is the Announcement

On June 18, 2024, President Biden announced a new program that could potentially change the lives of DACA recipients and other DREAMERS. This program provides a pathway for them to receive work visas and potentially permanent residence if they have 'earned a degree' from a US College or University and received a job offer in their field from a US employer. The Biden Administration will demonstrate its commitment through a streamlined, well-established process called INA 212(d)(3) Waivers. Contact us or schedule a confidential consultation today to discuss your case.

Why is this Announcement Important

This announcement by the Biden Administration is a breakthrough for DDACA recipients and DREAMERS. It provides a meaningful solution for the nearly 1,500,000 million individuals who were brought to the United States illegally by their parents as children. When we say illegally, we mean those children who crossed the US border with their parents without inspection. Congress failed to provide a solution for those innocent children who have now grown up in the United States and who had no say in their illegal entry. In June of 2012, President Biden provided a solution in the form of executive action to remove the threat of deportation by introducing the Deferred Action for Childhood Arrivals or DACA program. DACA provided work authorization but no pathway for permanent residence. President Biden’s new program will resolve this problem by streamlining the nonimmigrant visa waiver known as the D3 waiver.

Why Do DREAMERS Need to Apply for a Waiver?

To understand the obstacles facing DREAMERs and their struggle to establish legal status in the United States, we must review a bit of statutory history. In 1996, Congress passed a punitive law called the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). This law was intended to discourage foreign nationals from entering the United States illegally or overstaying their legal immigration status.

After nearly 30 years, this punitive piece of legislation failed to achieve its intended purpose as foreign illegal entrants and overstayed individuals have more than doubled since the inception of IIRIRA. One of the punitive provisions of IIRIRA was the introduction of the three and 10-year bars. These bars will attach to anyone unlawfully present in the US through overstay or illegal entry for 180 days and one year. Those who left the United States and were unlawfully present for 180 days are inadmissible (barred from returning) for three years, and those who have been unlawfully present for a year or more are inadmissible for ten years. The only way to overcome these bars is through filing applications for waivers with the US government.

Since DREAMERS are subject to these bars, they have historically been unable to obtain any work visas or permanent residence unless they applied for one of these waivers. Those who married US citizens may have been able to apply for a provisional waiver, which provided a pathway to permanent residence. But others who have not are left without any such opportunity.

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What is a D3 Waiver, and How Does it Help DREAMERs?

One of the waivers available to DREAMERs is using an existing provision through INA 212(d)(3), also known as the D3 waiver. This waiver is filed with a US Consulate to remove an inadmissibility bar, such as the 3- and 10-year bars explained above. A foreign national must depart the United States and apply for this waiver at a US Consulate, which is very risky. Though the criteria to obtain such a waiver appear simple, US Consulates rarely approve D3 waivers. Hence, using the D3 waiver for DREAMERs has not historically been a viable option.

In its announcement, the Biden Administration promises to streamline the D3 waiver process to make it a vehicle for DREAMERs to overcome the 3- and 10-year bars. Although there has not been a detailed explanation regarding the details of the streamlining process, this is certainly a breakthrough to resolve the 3- and 10-year inadmissibility bars facing DREAMERs.

How Would a DREAMER Obtain Permanent Residence?

To benefit from the Biden Announcement, a DREAMER must have graduated from a college or university in the United States, obtained a work visa sponsorship such as an H-1B or O-1 visa, departed the United States, and applied for the newly streamlined D3 waiver. Once approved and back in the United States with valid immigration status, a DREAMER can proceed to be sponsored for permanent residence through any established employment-based visa categories.

Conclusion

The new Announcement by the Biden Administration to provide a legalization pathway for DREAMERs who have graduated from a US College or University is a breakthrough that will allow hundreds of thousands of talented individuals who were brought to the United States illegally as children. The D3 waiver program must first be overhauled to assure DREAMERs that their risk is substantially diminished before embarking on a waiver application outside the United States. We believe that approval for a D3 waiver must occur before the DREAMER’s departure so that their fate is not hanging in the balance by a consular officer who decides not to follow the newly established program. Once the details of this new program are published, we will write a detailed article addressing the new requirements. Contact us or schedule a confidential consultation today to discuss your case.
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