As published in the Immigration Daily on July y 24, 2024
Relating to the Executive Order of June 17, 2024, affecting DACA holders and other undocumented university and college graduates and the June 18, 2024, fact sheet put out by the White House, FACT SHEET: President Biden Announces New Actions to Keep Families Together | The White House that the announcement would allow individuals, including DACA recipients and other Dreamers, who have earned a degree at an accredited US institution of higher education in the United States, and who have received an offer of employment from a US employer in the field related to their degree, to more quickly receive work visas, the latest update to the Department of State’s “Easing the Nonimmigrant Visa Process for U.S. College Graduates (state.gov)” on July 15, 2024, sees the Department still seemingly directing its energies in awaiting only H-1B visa applications as, in answer to the question “How long are current interview appointment wait times for employment based nonimmigrant visas and overseas posts?”, it said that interview wait times for H-1B visas are minimal at most of its overseas posts.
It further stated that updated waiver guidance for consular officers was issued on July 15, 2024. §212 (d) (3) waivers of inadmissibility are necessary in most cases for these classes of applicants to obtain visas at the consulates due to the 3 or 10 year bars attendant to remaining unlawfully in the US for six months or one year respectively after the age of 18. Although not going into detail on waiver procedure in the update itself, a look at the Foreign Affairs Manual changes (new parts in bold) https://fam.state.gov/fam/09FAM/09FAM030504.html shows the new guidance for consular officers:
9 FAM 305.4-3(C) (U) Factors to Consider When Recommending a Waiver
(CT:VISA-2025; 07-15-2024)
a. (U) You may, in your discretion, recommend an INA 212(d)(3)(A) waiver for any nonimmigrant whose case meets the criteria of 9 FAM 305.4-3(B) above and whose presence would not be harmful to U.S. interests. Eligibility for a waiver is not conditioned on having a qualifying family relationship, or the passage of a specific amount of time, or any other special statutory threshold requirement. The law does not require that such action be limited to humanitarian or other exceptional cases. While the exercise of discretion and good judgment is essential, you may recommend waivers for any legitimate purpose of travel.
b. Unavailable
c. (U) You should consider the following factors, among others, when deciding whether to recommend a waiver:
(1) (U) The recency and seriousness of the activity or condition causing the applicant’s ineligibility;
(2) (U) The reasons for the proposed travel to the United States; and
(3) (U) The positive or negative effect, if any, of the planned travel on U.S. public interests. NOTE: In general, you should consider cases where the applicant has graduated with a degree from an institution of higher education in the United States, or has earned credentials to engage in skilled labor in the United States, and is seeking to travel to the United States to commence or continue employment with a U.S. employer in a field related to the education that the applicant attained in the United States, to have a positive effect on U.S. public interests;
9 FAM 305.4-3(E)(2) (U) When to Submit Applications to the Department for Review
(CT:VISA-2025; 07-15-2024)
a. (U) If an applicant or interested party requests a waiver after you decline to recommend one, you should refer the request to the Department for review if the case meets one of the criteria below. Supervisor concurrence is required if you find that the applicant’s waiver request does not meet one of the listed criteria:
(1) (U) Foreign Relations: Refusal of the NIV application would become a bilateral irritant or be raised by a foreign government with a high-ranking U.S. government official;
(2) (U) National Security: Admission to the United States would advance a U.S. national security interest;
(3) (U) Law Enforcement: Admission to the United States would advance an important U.S. law enforcement objective;
(4) (U) Significant Public Interest: Admission to the United States would advance a significant U.S. public interest including the positive effect of the planned travel on U.S. public interests described above in 9 FAM 305.4-3(C)(c)(3)
9 FAM 305.4-3(F) (U) Waiver Expedite Requests
(U) As described in 9 FAM 305.4-3(C)(c)(3) with regard to recommending a waiver, there is a clear and significant U.S. public interest in asking CBP/ARO to expedite a waiver request if the applicant has graduated with a degree from an institution of higher education in the United States, or has earned credentials to engage in skilled labor in the United States, and is seeking to travel to the United States to commence or continue employment with a U.S. employer in a field that requires the education that the applicant attained in the United States.
The groundwork now appears laid for consular interviews although with no guarantee that the applicant will receive the visa. Inadmissibility grounds or doubts concerning the underlying petition may still derail the visa quest.
The Department of State appears prepared to entertain and expeditiously work with DHS on H-1B visa applications and inadmissibility waivers from DACA holders and other undocumented college or university graduates, but the Department update and FAM changes do not speak to any contemplated new program or other visa categories, a concern expressed in our last article, Article: Before Federal Register Notice Appears, Questions Relating to the Executive Order of June 17, 2024, Affecting DACA Holders and Other Undocumented University and College Graduates by Alan Lee, Esq – ILW.COM Discussion Board. The emphasis on H-1B visa applications may very well be centered on the dual intent character of the visa in that applicants do not have to prove nonimmigrant intent or a residence in their home countries during visa interviews. Because of the numbers limitation on cap H-1B visas (only 85,000 approximately per year) and the current severe competition making selection a form of “lottery,” many are eagerly awaiting the anticipated Federal Register notice to see whether the Executive Order’s scope will cover more than the H-1B program.