On June 18, 2024, President Biden announced two "new actions for people who have been here many years to keep American families together and allow more young people to contribute to our economy." Both the Department of State and Homeland Security have begun issuing statements and guidance on the implementation of the new actions. DOS and DHS will decide these narrowly tailored benefits on a case-by-case basis. Neither of the benefits can be sought until the agencies publish finalized instructions. Individuals who believe they may qualify for any of these benefits should be advised to seek an individual consultation with an experienced immigration attorney.

Primary Sources

  1. Fact Sheet: President Biden Announces New Actions to Keep Families Together, June 18, 2024 (White House)
  2. Fact Sheet: DHS Announces New Process to Promote the Unity and Stability of Families, June 17, 2024 (DHS)
  3. Process to Promote the Unity and Stability of Families, June 18, 2024 (USCIS)
  4. Easing the Nonimmigrant Visa Process for U.S. College Graduates, June 18, 2024 (DOS)

Action 1 - Parole in Place for Certain Spouses of U.S. Citizens

First, DHS plans to allow certain spouses of U.S. citizens to apply for "parole in place" which, if granted, would allow the spouse and certain eligible minor children of the spouse to apply for adjustment of status to permanent residence, and remain in the United States throughout both processes. To qualify for the parole in place, the spouse will have to show that they:

  • Are present in the United States without having been inspected or paroled (and so, spouses who entered with inspection and later violated their term of admission will not be eligible)
  • Have been continuously present in the United States for at least 10 years as of June 17, 2024; and
  • Have a legally valid marriage to a U.S. citizen as of June 17, 2024.

Action 2 - Clarified Procedures for DACA Recipients Seeking D-3 Waivers of Inadmissibility

Second, DOS and DHS will work together to clarify procedures for certain DACA recipients (and possibly other "Dreamers") who must seek a waiver of inadmissibility before being eligible to receive a nonimmigrant visa (like an H-1B visa) and reenter the United States in that nonimmigrant status.

To be eligible for the D-3 waiver the "Dreamer" would have to have graduated with a degree from a college in the United States, have a job offer from a U.S. employer, and otherwise qualify for the nonimmigrant visa they are applying for.

DACA students, although protected from deportation and granted work and travel authorization, do not have lawful status. Because of this, they are ineligible to change their status from DACA to a nonimmigrant status like H-1B. For example, since a DACA student is ineligible for change of status (COS), the only route to acquiring H-1B status would be for them to exit the United States, apply for and obtain an H-1B visa at a U.S. consular office abroad, and then reenter the United States in H-1B status.

However, most DACA students would be found to be inadmissible under one or more of the grounds of inadmissibility at INA 212(a), such as unlawful presence under INA 212(a)(9)(B). Currently, many DACA recipients are subject to the "unlawful presence" ground of inadmissibility and are subject to a 10-year bar on reentering the United States if they depart the U.S. without first securing a DACA-based travel authorization called advance parole.

Section 212(d)(3) of the Immigration and Nationality Act, though, allows DHS to waive such grounds of ineligibility. The numbering of this statutory provision is why these are called "D-3" waivers.

A D-3 waiver has always been theoretically available for DACA recipients who wished to exit the United States and return as a nonimmigrant, but the procedures and eligibility criteria have not been clearly defined. Under the June 18, 2024 presidential action, DOS and DHS say they will clarify D-3 waiver eligibilities, processes, and procedures. There are also risks, because applying for a D-3 waiver can usually only be done at a U.S. consulate abroad.

The Department of State Foreign Affairs Manual instructs consular officers at 9 FAM 405.4-3(C) that they "should consider the following factors, among others, when deciding whether to recommend a [D-3] 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.

(4)  (U) Whether there is a single, isolated incident or a pattern of misconduct; and

(5)  (U) Evidence of reformation or rehabilitation.:

DOS stated in Easing the Nonimmigrant Visa Process for U.S. College Graduates, June 18, 2024 that it expects to issue updated guidance for consular officers "within the next 30 days," and DHS said in Fact Sheet: DHS Announces New Process to Promote the Unity and Stability of Families, June 17, 2024 that it "will implement the Department of State’s policy update."

In an update likely related to this implementation, on July 15, 2024 the Department of State revised the above Foreign Affairs Manual section with the following note regarding factor 3, "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;"

DOS also updated 9 FAM 405.4-3(C) to refer back to this note regarding U.S. education, and find that it would normally constitute a "clear and significant U.S. public interest" when considering whether to expedite a D-3 waiver request.

For additional background and discussion on D-3 waivers in this context, see The Presidents' Alliance on Higher Education and Immigration D-3 Waiver Explainer. You can also register for the Alliance's July 10, 2024 webinar on Streamlining Dreamers’ Access to Employment-Based Visas Using D-3 Waivers.