The Biden administration made two important immigration policy announcements this week. The first, which my colleague Andrew R. Arthur wrote about in detail, will allow aliens who are in the United States illegally and married to U.S. Citizens to receive “parole in place”, which would put many on a pathway to citizenship. The second, which I will discuss here, will require consular officers from the U.S. Department of State to streamline and expedite DACA beneficiaries’ requests for “unlawful presence waivers”, known as “D-3” waivers because of section 212(d)(3) of the Immigration and Nationality Act (INA) in which they are authorized.
By expediting and streamlining DACA beneficiaries’ access to this type of waiver, the Biden administration believes that more DACA beneficiaries will apply for and receive work visas. In turn, DACA beneficiaries who receive work visas will obtain lawful immigration statuses in the United States and be potentially placed on pathways to citizenship.
First, as a reminder, the Deferred Action for Childhood Arrivals (DACA) program was created by the Obama administration on June 15, 2012. The program provides immigration benefits, including lawful presence, employment authorization, and forbearance from deportation to certain aliens who are in the United States illegally. DACA is not considered a lawful immigration status since it is not authorized by law, but rather merely a “deferment of removal” based on the U.S. Department of Homeland Security (DHS)’s exercise of prosecutorial discretion.
In addition to other eligibility criteria, DACA beneficiaries must have been under the age of 31 on or before June 15, 2012, and have entered the United States prior to 2007, thus making the eligible population between the ages of 27 to 43 years old. As of 2022, DHS has allowed over 825,000 aliens in the United States illegally to work and obtain numerous public benefits using DACA, with an estimated eligible population of up to 1.7 million individuals. Recent U.S. Citizenship and Immigration Services (USCIS) reports put the current DACA population at approximately 600,000 individuals — meaning that not all DACA beneficiaries have maintained or renewed their deferred action.
The second notable reminder is that because DACA is not authorized by law, but rather conflicts with numerous provisions in the INA, it has been subject to legal challenges. Most importantly, the program has been determined to be both substantively and procedurally invalid by a federal court in the Fifth Circuit, in a case that will likely obtain a final resolution in the U.S. Supreme Court.
The Biden administration’s DACA announcement this week, however, indicates that the administration plans to issue guidance to consular officers designed to give DACA beneficiaries confidence in their ability to obtain INA § 212(d)(3) waivers. The administration is also expected to direct officers to prioritize DACA beneficiaries’ waiver requests over other aliens’ requests to expedite the process for this population. Because INA § 212(d)(3) waivers are discretionary and often take months to process, many DACA beneficiaries have been reluctant to risk leaving the United States to request one.
These types of waivers are necessary if an alien who entered the United States illegally — like many DACA beneficiaries — wants to obtain a visa. Federal law, at INA § 212(a)(9)(B), bans aliens who are known to have been unlawfully present in the United States for over six months or more than one year from reentering the United States for three or 10 years, respectively, under what is referred to as the “three- and ten-year bars” These bars to reentry were enacted by Congress specifically to discourage illegal immigration to the United States.
Once a waiver is granted, however, a DACA beneficiary can apply for a work-based visa, such as an H-1B nonimmigrant visa, at a consulate or port of entry, and then (if the visa is granted) to enter the United States in valid nonimmigrant status with work authorization. A DHS press release explained, “By clarifying and enhancing the existing process, the Department of State’s policy will give U.S. employers increased confidence that they can hire the talent they need, and that they will be able to quickly get to work. DHS will implement the Department of State’s policy update.”
A second benefit to obtaining a work-based visa is that it will also allow DACA beneficiaries to adjust their status to lawful permanent residents (green card holders) if they become otherwise eligible. Many DACA recipients are not eligible to adjust status because the INA at section 245a bars adjustment from aliens in the United States who have not been “lawfully admitted or paroled” (i.e., entered the United States without inspection). Successfully obtaining a work visa will allow DACA beneficiaries to be considered “lawfully admitted” to the United States.
The Biden administration has yet to publish the details of this new policy or share any new Department of State guidance with the public. Experts believe that these two administrative amnesties are being pushed to appease the progressive base of the Democratic Party, which has been largely opposed to the Biden administration’s recent issuance of (weak) border enforcement measures.