Waivers of Grounds of Inadmissibility for Certain University Graduates


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Effective July 15, 2024, the Biden Administration has made significant updates to 9 FAM 305.4 Processing Waivers in the U.S. Department of State’s Foreign Affairs Manual (FAM), impacting how consular officers consider waiver applications for international university graduates, including Deferred Action for Childhood Arrivals (DACA) beneficiaries. This update directs consular officers to weigh the positive effects on U.S. public interests when reviewing waiver applications for graduates who have earned degrees from U.S. institutions or have credentials for skilled labor in the U.S. and are seeking to continue or commence employment in their field of study.

What is a Waiver and Who Would Benefit?

A waiver of grounds of inadmissibility is a legal mechanism that allows individuals who are otherwise inadmissible to the United States to seek admission or obtain a visa from a U.S. Consulate to be admitted to the country in valid U.S. immigration status. These waivers are essential for individuals with past immigration violations, such as illegal entry, overstaying a visa, or criminal history, who seek temporary nonimmigrant visas or permanent immigrant visas (green cards). By obtaining a waiver, applicants can overcome specific grounds of inadmissibility and gain legal status in the U.S.

This update is particularly relevant for DACA recipients and other international graduates from U.S. universities who may have past immigration violations that require waivers when applying for temporary nonimmigrant visas or immigrant visas. For instance, DACA recipients may be able to apply for work visas, such as the H-1B or TN visa, or even employment-based immigrant visas, if they meet the educational and employment criteria.

Recommendations for DACA Beneficiaries and Other D-3 Waiver Applicants

Waiver applications are highly discretionary by the Consular Officer, meaning there is a significant risk of denial.

It is crucial for DACA beneficiaries and other applicants seeking D-3 waivers to obtain Advance Parole Travel Documents where eligible. These documents can serve as a backup plan in case the waiver application is denied, allowing the individual to return to the U.S. rather than facing an extended period of inadmissibility where they are unable to obtain a visa or return to the United States.

DACA beneficiaries can apply in advance with USCIS to obtain travel documents for the following purposes:

  • Educational: Participation in study abroad programs or academic research.
  • Employment: Work assignments or training programs outside the U.S.
  • Humanitarian: Situations such as medical emergencies or family matters that require travel abroad.

Understanding the Waiver Process

Nonimmigrant Visa Waiver Authority

Under Section 212(d)(3)(A) of the Immigration and Nationality Act (INA), Department of State consular officers hold the discretionary authority to recommend waivers of nonimmigrant visa (NIV) ineligibility to the Department of Homeland Security (DHS). The Foreign Affairs Manual encourages consular officers to use this discretion favorably when the applicant is otherwise qualified for a visa and granting the waiver is not contrary to U.S. interests.

Key Factors for Waiver Consideration

When an applicant presents with a 212(a) ineligibility, consular officers are guided by the FAM to consider the following factors:

  1. The recency and seriousness of the activity causing ineligibility.
  2. The reasons for the applicant’s travel to the United States.
  3. The impact of the applicant’s travel on U.S. public interests.
  4. Whether the applicant’s ineligibility results from a single incident or a pattern of misconduct.
  5. Evidence of the applicant’s reformation or rehabilitation.

These factors originate from the caselaw established by Matter of Hranka, 16 I&N Dec. 491 (BIA 1978).

Special Waiver Considerations

For specific ineligibilities under Section 212(a)(9)(A) and 212(a)(9)(C), which involve previous removal or unlawful presence, additional considerations are required. These ineligibilities may necessitate consent to reapply for admission (CTR) from the Attorney General, which can be integrated into the waiver process by the consular officer or requested separately via Form I-212.

Conclusion

At Myers Immigration Law, our immigration lawyers are dedicated to assisting international university graduates, including DACA beneficiaries, in navigating the complex process of obtaining waivers of inadmissibility. With the recent updates to the Foreign Affairs Manual, there are new opportunities for skilled professionals to secure visas and continue their careers in the United States. Our experience in immigration law ensures that we can provide comprehensive guidance and support throughout the waiver application process. Contact us today to learn more about how we can help you achieve your immigration goals.

 

The above is informational and not intended to be legal advice. Please consult with an experienced business immigration attorney on your specific facts and circumstances before proceeding with any U.S. immigration strategy.