Some immigrants who have graduated from college in the United States and have a pending job offer will have an easier time receiving a temporary employment-based visa, thanks to recent changes from the Biden administration. This will include Deferred Action for Childhood Arrivals (DACA) beneficiaries and other college-educated noncitizens.
The Department of State (DOS) updated its guidance on July 15 to consular officers for recommending waivers related to temporary, or nonimmigrant, visas. About a month ago, the Biden administration announced two initiatives to streamline bureaucratic processes preventing many undocumented immigrants from obtaining legal status. As part of one of those initiatives, the administration modified its consular guidance to address uncertainty for those who travel abroad for an interview and must request a waiver for previous immigration-related infractions.
This update primarily benefits noncitizens who might qualify for employment-based temporary work visas. Many undocumented college graduates may qualify for one of the most requested visas, the H-1B, if they are currently employed or have a job offer in a particular sector that is related to their area of study. The H-1B is for professionals in specialty occupations that require a bachelor’s degree or equivalent as a minimum requirement. The types of eligible occupations vary, but can include IT professionals, computer scientists, engineers, professors, nurses, accountants, and architects.
Though the H-1B category doesn’t directly provide a path to permanent residency, its recipients may be able to apply for an employment-based green card if their employers sponsor them—something that isn’t currently an option for many DACAmented or undocumented college graduates.
The new guidance doesn’t change or alter the types of temporary employment-based visas that exist, or the steps to obtain them. Rather, this guidance aims to clarify one component of that process.
Most potential applicants will at least need to have an ongoing relationship with a qualifying employer who is willing to sponsor them through U.S. Citizenship and Immigration Services (USCIS) first. Once the employer’s petition is approved, undocumented noncitizens must depart the United States and attend an interview abroad.
However, because many, including DACA recipients, have accumulated at least six months of unlawful presence in the United States, they would be automatically barred from reentering the country for 3- to 10-years upon their departure under immigration law. To return to the United States before the passage of that time, applicants would have to request a waiver.
The waiver, known as a D-3 waiver, is not processed by DOS. Instead, a consular officer may recommend to the Admissibility Review Office under the purview of U.S. Customs and Border Protection, which adjudicates the waiver, that it be authorized. The new DOS guidance establishes that consular officers “should” submit a recommendation when the applicant meets the waiver’s requirements, otherwise qualifies for the nonimmigrant visa, and when the waiver’s approval is not contrary to U.S. interests.
It also creates a presumption that an applicant with a degree from a U.S.-based institution – or who otherwise has the credentials to engage in skilled labor in the United States – and is coming to work for a U.S. employer in a related field is considered as having a positive effect on U.S. public interests. The new guidance also clarifies that these individuals are eligible to make expedite requests.
These changes should address some of the uncertainty that currently exists in this process. For example, the presumption that these individuals have a positive effect on U.S. public interests indicates that DOS will be more likely to recommend a waiver. In addition, clarifying that these applicants can request that their waivers be expedited will likely decrease the length of the waiver adjudication process, which currently can take months and can only be done while the applicant is outside of the United States.
While these are important changes, their true impact will likely be limited.
FWD.us estimates that nearly half of the current 528,300 DACA recipients have completed some college education; however, only about 70,000 have a bachelor’s degree and 17,000 have an advanced degree. In addition, while the H-1B may be a good option for some, those visas are generally capped at 65,000 visas per year, with an additional 20,000 for those with advanced degrees. For the fiscal year 2025 cycle, over 420,000 applicants applied for the opportunity to be considered for one of these visas. There is some hope for those who work for employers that are not subject to this visa cap, though, including institutions of higher education or nonprofits affiliated with them, nonprofit research organizations, and government research organizations.
There may be other employment-based nonimmigrant visa options beyond the H-1B, but they are narrowly tailored for specific circumstances or may have conditions that could be difficult to meet. For example, noncitizen workers of multinational companies in managerial or executive positions or who have specialized knowledge may apply for an L-1 visa. However, this visa requires that the applicant be employed by the company for at least one-year abroad.
Other temporary work visas, like those for applicants with extraordinary abilities in their professions (O-1 visas) or investors from countries that have commerce and navigation treaties with the U.S. (E-2 visas), require the applicant to show that they will return to their home country once their visa term ends. This could be nearly impossible for someone who grew up and attended college in the United States.
Even if a person can successfully navigate this process, a path to permanent residency is not crystal clear. This is because the D-3 waiver does not excuse immigration-related infractions in the green card context.
Nevertheless, this guidance is a positive step for those who may not have other options to gain lawful status. This is especially true not only for the growing number of immigrant youth who are currently locked out of requesting DACA, but also for those who currently have it, given the program’s tenuous legal fate.
As Congress continues to be mired in partisanship, it seems unlikely that we’ll see meaningful immigration reform address the uncertainty faced by DACA recipients and other noncitizens who have grown up in this country and graduated from its schools. Consequently, the Biden administration’s narrow but impactful update to DOS’ consular guidelines provide the opportunity for some of these individuals to move toward certainty and stability.
FILED UNDER: Department of State, High Skill Workers, USCIS
