U.S. Eases Nonimmigrant Visa Rules for College Graduates
On June 18, 2024, the Biden-Harris Administration announced plans to simplify obtaining employment-based nonimmigrant visas for U.S. college graduates with job offers, including DACA (Deferred Action for Childhood Arrivals) recipients. This measure is to ensure retention of foreign talent recognizing their potential to contribute to the country’s greater economic competitiveness.
Key Takeaways:
- Easier Visa Process: The government will improve and clarify the current employment visa application process making it faster and more accessible. The purpose of this is to ensure that individuals who have studied at institutions in the United Stated can work and stay in the country.
- Eligibility Requirements: The announcement by the current administration will not change drastically in terms of the basic requirements for visas such as the H-1B worker visa. However, there presumes to be a policy shift to prioritize applications for individuals who have graduated from colleges and universities in the United States. This shift in prioritization depends greatly on specific policies and regulations that have not yet been developed. Nonetheless, the implementation could potentially include changes to the H-1B selection process, which would be giving higher priority to applicants who graduated from U.S. institutions.
- Waivers for Previous Unlawful Presence: The current administration wants to provide additional clarity around the waiver process for those individuals who may be inadmissible due to a prior unlawful presence in the United States. This may include consular officers using their discretion to recommend waivers and the Department of Homeland Security granting them to accelerate the visa process. Nevertheless, this implies a more lenient approach to waivers for individuals.
- National Interest: The U.S. government places their priority on foreign nationals who are educated in the United Stated as they recognize their value to national interest. By simplifying the visa application process, this new policy aims to encourage them to contribute to the U.S. workforce.
Applying for 212 (d)(3) Waivers for Visa Ineligibility
Individuals who are inadmissible to the United States can have their inadmissibility waived by applying for a 212(d)(3) waiver which will allow the individual to receive a nonimmigrant visa. CBP’s Admissibility Review Office (ARO) is the only authority that can approve the waiver. Consular officers are encouraged to request the waiver from ARO as the visa applicant has no means to request a waiver directly.
In considering whether to recommend a nonimmigrant visa waiver, consular officers refer to a specific list that allows them to make this decision. The factors of consideration include the “recency and seriousness of the activity or condition causing the applicant’s ineligibility, the positive or negative effect, if any, of the planned travel on U.S. public interests, whether it was a single isolated incident or a pattern of misconduct, and any evidence of reformation or rehabilitation.”
It is important to note that consular officers are encouraged to consider circumstances “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…” as having a positive effect on the public interest of the United States.
The language in this update also allows for broad interpretation to include what is beneficial for DACA recipients and other DREAMERs. Regarding this group, the need for the 212 (d)(3) waiver would typically be related to the inadmissibility that has resulted from an extended overstay. Examples of this include if a DACA recipient was issued DACA approval more than 180 days after their 18th birthday or had any lapses in DACA of more than six months. The DACA recipient applying for a nonimmigrant visa would eventually be flagged as inadmissible. This new DOS guidance allows for a DACA recipient applying for an H-1B nonimmigrant visa to be afforded more flexibility as their entry would be considered in the public interest of the United States. This is only one factor, however, and the consular officer will consider all alternative factors in deciding whether to recommend a waiver.
The changes in policy outlined in this place underscores the United States’ commitment to place high value on the skills and education of its college graduates, ensuring contribution to the country’s overall growth. The inclusion of DACA recipients highlight a true effort in immigration reform by the current administration. By simplifying the overall nonimmigrant visa process, the United States is taking significant steps forward and towards a fairer immigration system. This approach not only prioritizes specific individuals but strengthens the society. As this matter is subject to updates, we encourage our readers to check our website regularly for updates on this and all matters regarding immigration law.