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D-3 Waivers for the Three- and Ten-Year Bars of Dreamers

Arturo Castellanos Canales

Introduction

On June 18, 2024, the Biden administration announced administrative actions to make it easier for Dreamers and DACA recipients who have earned a degree at an accredited U.S. institution of higher education to become eligible for work visas in the United States. In essence, these actions would streamline D-3 waiver applications for DACA recipients and Dreamers who wish to obtain a work visa in the United States while avoiding the 3- and 10-year bars.

Three- and Ten-Year Bars

The so-called 3- and 10-year bars are immigration penalties that disqualify noncitizens who have resided in the United States without authorization for more than 180 days from applying for a U.S. visa.

Both bars are applied in the same manner. The only difference is the penalty’s length, which varies depending on how long an individual has remained without authorization in the United States. The table below provides a breakdown of the different penalties.

PenaltyDuration of Unauthorized Stay
3-year banAt least 180 days, but less than one year
10-year banOne year or longer

The 3- and 10-year bars were established by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), legislation that was intended to reduce the growing unauthorized immigrant population by imposing new and increased penalties for immigration offenses. However, the 3- and 10-year bars had the opposite effect. Counterintuitively, the penalties discouraged migrants seeking short-term work from returning to their home countries and incentivized long-term unauthorized presence in the U.S.

D-3 Waivers

While the bars disqualify tens of thousands of people from applying for a visa, there are a few inadmissibility waivers through which inadmissible noncitizens subject to the 3- and 10-year ban can come legally to the United States. One of those waivers is the so-called D-3 waiver.

In short, a D-3 waiver is a provision of the Nationality and Immigration Act (INA §212(d)(3)) that can excuse – on a case-by-case basis – a wide range of grounds of inadmissibility to the United States, including the 3- and 10-year bar. As explained in this paper by the Presidents’ Alliance on Higher Education and Immigration, Dream.US, and Cornell Law School, D-3 waivers “allow Dreamers to obtain an employment-based temporary visa at a U.S. consulate abroad, and then re-enter the United States in valid status with work authorization.”

D-3 Waiver Changes Suggested by the Biden Administration

DACA recipients and other Dreamers are already eligible to apply for D-3 waivers. Notably, most of the applications are approved. However, due to a lack of clear guidance, the current D-3 waiver process is subjective, long, and unpredictable. Therefore, many eligible DACA and Dreamers rarely use this tool to obtain a work visa. The Biden administration announcement aims to streamline and provide predictability to the D-3 waiver applications of Dreamers and DACA recipients by clarifying the guidance for D-3 waivers, including new language in the Foreign Affairs Manual. Under the waiver, Dreamers with a U.S. college degree and a job offer from a U.S. employer in a field related to their degree will become eligible – on a case-by-case basis – for an expedited process to obtain a work visa in the United States.

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