United States | Ineligibility waiver clarifications ease work visa path for DACA and college grads

The State Department announced clarifications to current consular guidance on recommending that the Department of Homeland Security (DHS) grant ineligibility waivers to certain Deferred Action for Childhood Arrivals (DACA) recipients and other college graduates.

Key Points:

• The guidance clarifications explain when consular officers should recommend that DHS waive applicant ineligibility on an expedited basis for certain DACA recipients in conjunction with visa applications overseas.
• The updates reflect the Biden-Harris administration’s initiative to more efficiently process employment-based nonimmigrant visas for college graduates, including DACA recipients, with a job offer.
• Waiver requests are adjudicated by DHS, U.S. Customs and Border Protection’s Admissibility Review Office, based on a recommendation from the State Department.
• All visa processing steps remain the same.
• The updated guidance on ineligibility waivers can be found here.

Additional Information: The updated guidance clarifies that a consular officer should consider as a “positive effect on U.S. public interests” — one of several factors considered in waiver decisions — cases where the applicant has graduated with a degree from an institution of higher education in the U.S., or has earned credentials to engage in skilled labor in the U.S. and is seeking to travel to the U.S. to commence or continue employment with a U.S. employer in a field related to the education that the applicant attained in the U.S. The updated guidance also explains there is a “clear and significant U.S. public interest” in asking DHS to expedite a waiver request if these criteria are met.

BAL Analysis: This guidance will potentially result in certain individuals receiving work visas more quickly if DHS approves a waiver of ineligibility. It is unclear if DHS will expedite these waivers. Individuals and employers seeking to obtain work visas under this new initiative should assess potential inadmissibility and all waiver criteria before traveling abroad and applying for a visa.

This alert has been provided by the BAL U.S. Practice Group.

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