Although many foreign-born graduates obtain an H-1B visa to work in professional employment in the United States, DREAM Act students encounter serious limitations to entering the U.S. workforce because of their lack of legal status. As a result, DREAMers can get discouraged, feeling as though their hard work in college cannot pay off because, in the end, they are unauthorized to work.

However, the so-called “D-3 waiver” may be one option for allowing DREAM Act students to obtain H-1B status after graduation. It can also provide hope to stay in school.

In considering this option, please keep in mind these key points:

  1. We strongly recommend that all DREAMers have a personalized consultation regarding their status with a qualified nonprofit or a licensed immigration attorney. Immigration rules are incredibly complex. A legal consultation is like having a doctor take a full history on the first office visit. It is essential to understanding all options and also all potential problems.
  2. The H-1B/D-3 waiver option is a short term, not a long term, solution. Being in status with work authorization, a Social Security number, and a driver’s license, is a tremendous step for a DREAMer if the H-1B/D-3 waiver is successful, but it does not provide long term status in the United States. That will require a separate plan or action by Congress.
  3. H-1B visas are sponsored by employers. DREAMers are well advised to develop relationships with potential employers through internships, volunteering, networking, etc., so that the employer may be more likely to support the H-1B process. The H-1B/D-3 option is not common, so if an employer is interested, but there are concerns about timing, requirements or funding, please let us know and we can discuss these. Some employers or DREAMers may choose not to pursue this option; our goal is to help provide good information so that the option can be considered in a clear light.

What is the D-3 waiver option?

The Immigration and Nationality Act §212(d)(3) waiver, known commonly as the d3 waiver, excuses a wide range (but not all) of grounds of inadmissibility to the United States, including unlawful presence, the only immigration law violation of most undocumented graduates. For any DREAMer who has been present in the United States for one year or more in violation of immigration laws, leaving the United States triggers a 10-year bar to readmission. An approved D-3 waiver removes that bar for temporary visa purposes, allowing the DREAMer to then apply for an H-1B 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.

How do I apply for a D-3 waiver?

You can apply for a D-3 waiver in two ways: at a U.S. Consulate, or at a Port of Entry, in the DREAMer’s birth country. Application for the D-3 waiver thus requires DREAMers to depart the United States. It is important to remember that not only will departure automatically trigger the 10-year bar in most cases, but DREAMers will need to return to their birth country, which may be unfamiliar to them. DREAMers are also advised to consider the consequences of leaving the United States to apply for a D-3 waiver before receiving H-1B petition approval. Even with petition approval, the D-3 waiver and H-1B visa application are not guaranteed, so students should carefully weigh the risks and benefits of leaving the United States with their employer and with qualified legal counsel.

The application for a D-3 waiver is made with the application for an H-1B visa abroad. Approval of the D-3 waiver does not automatically grant an H-1B visa, but rather removes the bar from the H-1B visa being granted. A DREAMer will still need to meet all of the requirements for an H-1B in order to be granted a visa.

For more information on the legal and practical issues around D-3 waivers, see Authorizations for Visa Issuance Under INA §212(d)(3)(A)

What happens to my 10-year bar of inadmissibility if I reenter the United States on a D-3 waiver?

As explained above, most DREAMers who have been unlawfully present in the United States for one year or more face a 10-year bar to admission from the date of their departure or removal from the United States. Thus, departure from the United States – which is necessary for a D-3 waiver application – is what triggers the 10-year bar, which starts clocking from the date of departure. A successful D-3 waiver removes the 10-year bar for nonimmigrant visa purposes only. In other words, the 10-year bar remains enforceable for any other application for admission, including permanent residency (absent approval of a different type waiver on extreme hardship grounds, which is extremely difficult to secure).

The statute concerning the 3- and 10-year bars, INA § 212(a)(9)(B), does not address whether either bar can be satisfied outside or inside the United States. However, CIS has on several occasions interpreted the statute to mean that there is no requirement to remain outside the United States during the entire period of inadmissibility. In a letter to private counsel, former CIS Chief Counsel Lynden Melmed opined: “I write to confirm that the section 212(a)(9)(B) inadmissibility period begins to run with the initial departure from the United States. …The inadmissibility period continues to run even if the alien is paroled into the United States or is lawfully admitted as a nonimmigrant under section 212(d)(3) [the d3 waiver], despite his or her inadmissibility under section 212(a)(9)(B).” The Administrative Appeals Office (AAO) has confirmed this view, specifically for the 3-year bar, in at least 5 non-precedent, unpublished decisions.2

Most recently however, the Service issued an extensive memorandum regarding unlawful presence that is silent on the issue of where inadmissibility can be cured. Though it has been inferred that this could be a tacit endorsement of the above letters and AAO decisions, USCIS interpretations of its own statutes can and do change, often with no warning.

If I leave and reenter the United States on a d3 waiver, am I still eligible for the DREAM Act if it passes?

The latest, House-approved language of the DREAM Act requires, in part, for a student to have been “physically present in the United States for a continuous period of not less than 5 years immediately preceding the date of the enactment.” The House bill allows for brief breaks in presence, but not “for any period in excess of 90 days or for any periods in the aggregate exceeding 180 days,” with only limited and compelling exceptions – illness or death of a close relative, for instance. Under this statutory language, it would appear that a DREAMer would still be eligible for relief after a short trip abroad to secure a d3 waiver and H-1B visa. However, it is unclear precisely how the DREAM Act will be worded if it is passed, or how it will be interpreted.

Is the D-3 waiver guaranteed?

A D-3 waiver could be denied, or only approved after weeks or even months of delays. This is why it is important to wait for H-1B petition approval before making plans to leave the United States, and to consider the implications of your potential eligibility for the DREAM Act.

Is there any written guidance on D-3 waiver adjudication?

The leading precedent decision on D-3 waivers, Matter of Hranka, 16 I&N Dec. 491 (BIA 1978), articulated three criteria for consular officers to rely on when making their discretionary determination whether or not an applicant’s immigration violation should be waived:

  1. The risk of harm to society if the applicant is admitted to the United States. For most DREAMers, their risk of harm to society is low if they intend to enter the United States as a working professional. Rather, there may be a potential benefit to U.S. society.
  2. The seriousness of the applicant’s prior immigration law, or criminal law, violations. This is compared to the range of grounds of inadmissibility covered by the d3 waiver. The immigration violation of unlawful presence, for example, is less serious than criminal convictions, drug offenses, or smuggling.
  3. The reasons for wishing to enter the United States. This is not limited to exceptional or humanitarian circumstances, but covers any legitimate purpose. Entering the United States for the purpose of pursuing professional employment, with a non-profit for instance, could be considered a legitimate reason at the discretion and good judgment of the consular officer.

Consular officers also receive guidance from the Foreign Affairs Manual (FAM). On factors to consider when recommending a waiver, 9 FAM 40.301 N.3a states in part: “While the exercise of discretion and good judgment is essential, you may recommend waivers for any legitimate purpose such as family visits, medical treatment (whether or not available abroad), business conferences, tourism, etc.” Considerations also include the “recency and seriousness” of the law violation, the “reasons for proposed travel” back into the United States, and the “positive or negative effect, if any. . .on U.S. public interests.”

Customs and Border Protection (CBP) – the officers who make immigration decisions at ports of entry – receive stricter guidance from the Inspector’s Field Manual (IFM), which states in part at IFM 17.5(e)(1):

Although the FAM provides guidance for State Department officers, the Service is not bound by it. The inspector should consider all of the above and also consider that the Congress has deemed these aliens inadmissible to the United States. In considering the waiver weigh the benefit, if any, to the United States should the waiver be granted. In situations where the proposed visit is for the purpose of medical treatment, consider whether such treatment is available to the alien abroad. Granting of waivers of these grounds should not be routine and available just for the asking.

This does not necessarily mean that a d3 waiver application is more difficult at a border crossing than at a consulate. Each border crossing and consulate has its own local rules and procedures, as well as personnel, that may impact the application process. Consultation with an immigration attorney will help prepare you for this process. For more details on applying for a d3 waiver at a Canadian-United States port of entry, follow this link to the CBP website.

Should I consider the D-3 waiver if I have a slower option to gain status without leaving the United States?

It is important to consider all options, and balance the speed, effort and risk of each.  Some undocumented students with a bachelor’s degree may have other longer term paths to permanent residence that do not involve leaving the US.  Aan undocumented student who entered the United States with a legal visa but overstayed may be eligible for permanent residence through marriage to a U.S. citizen without having to go to her home country.  Or, an undocumented student who qualifies for 245i may be able to seek a green card in the United States through an employer-sponsored petition (these can be relatively fast if the job requires an advanced degree) or a family-based petition.

As an example, a student who qualifies for 245 may face a choice of leaving soon to pursue an H-1B visa with d3 waiver, but also have the option of staying in the United States, pursuing a Masters degree, and then seeking a green card through an employer sponsor.  Again, the speed of becoming legal, the effort involved in the process, and the risk/reward of each option should be discussed with an immigration attorney.

By the end of 2012, it may be possible that undocumented students who entered illegally but are married to a U.S. citizen may be able to try a potentially faster and less risky process for seeking a green card, even though this will still involve travel to the home country. (More information is available here.) We will have to see how this program is set up – but it is a welcome step forward.

What is an H-1B?

An H-1B nonimmigrant visa is a temporary visa for professional workers in specialty occupations that normally require a bachelor’s degree or equivalent as a minimum requirement. Typical examples of H-1B eligible professionals are computer programmers, engineers, teachers, scientists, and lawyers. The H-1B visa is valid for three years and can be renewed for an additional three years, for a maximum of six years.

For H-1Bs, the job and the degree must match nicely. For example, an English major who is talented with computers, but only has limited academic or work experience, may not be eligible for an H-1B, even if he/she is a better programmer than a computer science major. Generally, United States Citizenship and Immigration Services (USCIS) will look to the degrees held by others with similar jobs at the same company, and across industry, to decide whether an H-1B is appropriate.

For an H-1B, the employer is the petitioner, and they are required to make successive filings with the Department of Labor (DOL) and then with USCIS. The employer must “attest” (promise) that it will pay the prevailing wage for that job in that geographic area, as well as to the actual wage paid at the company for others in the same job, among other attestations.

The H-1B petition is submitted to USCIS with Form I-129 and supplements, a Labor Condition Application (LCA) certified by DOL, and evidence of the specialty occupation and the applicant’s eligibility for H-1B status.

H-1B petition approval does not guarantee H-1B visa approval, even without the necessity of the d3 waiver application. USCIS adjudicates petitions, but a different agency, the Department of State (DOS), issues machine-readable visas outside the country. For DREAMers who apply for an H-1B visa concurrent with their d3 waiver application at a U.S. consulate abroad, H-1B petition approval by USCIS is the necessary first step.

Is there an H-1B quota?

USCIS does implement an H-1B “cap,” or a numerical limitation on H-1B visas available each fiscal year. Currently, the numerical limit is 65,000, with an additional 20,000 H-1Bs for graduates with at least at master’s degree from a U.S. institution of higher education. In a good economy, it is common for USCIS to receive far more H-1B petitions than available visa numbers within only a few days of filing acceptance. In these cases, there is a random selection process to determine which petitions will be accepted. In a downturn economy however, H-1Bs tend to be much less competitive. In FY 2010 and 2011, for example, the quota was not met until months after the fiscal year began.

There are also a number of exemptions from the H-1B cap. All institutions of higher education, related or affiliated non-profits, and governmental research organizations are exempt. This means that an H-1B petition can be filed by these employers at any time of the year without concern for competition over limited numbers.

A DREAM Act student seeking first-time employment with a private employer may be subject to the H-1B cap, but with careful planning, and given the conditions of the current economy, the chances of filing acceptance are high. Once you are counted towards the cap, you do not need to be counted again for an H-1B extension.

Do employers need to prove that H-1B workers are not displacing U.S. workers?

Only in limited circumstances where an employer is “H-1B dependent” (has a high ratio of H-1B to U.S. workers) or a “willful violator” of DOL compliance. This is not the case for the majority of employers wishing to sponsor DREAMers.

Where can I find out more about H-1Bs?

Our firm’s website has several helpful articles about H-1Bs:

H-1B visas for Specialty Occupations, Professional Workers
Visas After Graduation