DACA recipients considering employment-based visas, like H-1B or L-1, often face a crucial decision: whether to consular process abroad. A key concern is the risk of triggering inadmissibility under the three- and ten-year bars outlined in INA § 212(a)(9)(B). This blog explores these bars, their exceptions, and the solutions available, including the discretionary d3 waiver.
What Are the Three- and Ten-Year Unlawful Presence Bars?
Three-Year Bar
The three-year bar applies to individuals who:
- Have accrued unlawful presence in the U.S. for more than 180 days but less than one year after April 1, 1997.
- Depart voluntarily before formal removal proceedings.
These individuals are inadmissible for three years from the date of departure. [INA § 212(a)(9)(B)(i)(I)].
Ten-Year Bar
The ten-year bar applies to individuals who:
- Have accrued unlawful presence in the U.S. for one year or more after April 1, 1997.
- Depart voluntarily or are removed.
These individuals are inadmissible for ten years from the date of departure. [INA § 212(a)(9)(B)(i)(II)].
Key Exceptions to the Bars
Certain individuals do not accrue unlawful presence, including:
- Those under 18 years of age. [INA § 212(a)(9)(B)(iii)(I)].
- DACA recipients during the period of their DACA authorization. [USCIS Policy Manual, Vol. 12, Part F, Chapter 2].
Thus, many DACA recipients may not trigger the bars when departing to consular process.
The d3 Waiver: A Pathway for Nonimmigrant Visas
If a DACA recipient triggers the three- or ten-year bar, they may still qualify for a discretionary waiver under INA § 212(d)(3). Known as a d3 waiver, it allows consular officers to issue nonimmigrant visas despite inadmissibility.
Factors for Approval
The d3 waiver is granted based on a balancing test that considers:
- Recency and seriousness of the ineligibility-causing conduct.
- Purpose of travel to the U.S.
- Impact on U.S. public interests.
- Whether the conduct reflects isolated incidents or a pattern.
- Evidence of reformation or rehabilitation.
For DACA recipients, factors like educational achievements, community contributions, and lack of recent violations often weigh heavily in their favor.
Application Process
- After an employer files and USCIS approves an H-1B or L-1 petition, the case is sent to a U.S. consulate.
- The applicant requests the d3 waiver during their visa interview.
Advanced Parole as an Alternative
DACA recipients may apply for advanced parole to attend consular interviews. While not guaranteed, USCIS field offices have occasionally expedited emergency requests for advance parole when appointments were imminent.
Future Pathways: Serving Bars Inside the U.S.
Recent USCIS guidance clarifies that the three- and ten-year bars can be “served” within the U.S. if the individual departs, re-enters with a valid visa, and remains lawfully present. This makes re-entry on an H-1B or L-1 a stepping stone to permanent residence.
Conclusion
For DACA recipients facing the three- and ten-year bars, understanding available solutions is crucial. Whether through a d3 waiver or advance parole, these options can pave the way for obtaining H-1B or L-1 status. However, each case requires a tailored analysis. Consulting an experienced immigration attorney is essential to navigating these complex processes.
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Citation
- Unlawful Presence and Inadmissibility
- State Department Foreign Affairs Manual, 9 FAM 302.11.
- USCIS Policy Manual, Vol. 12, Part F, Chapter 2.
- USCIS Policy Alert, August 2020.
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