ALO is providing more detailed guidance on the new FAM updates concerning 212(d)(3) waivers, following the Department of State’s (DOS) release of clarifying guidance and updates to the FAM. This focuses on the implications of these updates for various groups, including DACA recipients, students, and other nonimmigrant visa applicants.
Overview of 212(d)(3) Waivers
Section 212(d)(3) waivers are critical for individuals who are otherwise inadmissible to the United States, allowing them to obtain a nonimmigrant visa. These waivers can only be issued by CBP’s Admissibility Review Office (ARO) upon request from consular officers, as there is no direct application process for visa applicants.
Key FAM Provisions and Updates
The updated guidance in the FAM covers three main areas:
- Factors to Consider When Recommending a Waiver (9 FAM 305.4-3(C)):
- Consular officers are directed to consider various factors when recommending a waiver. These include the severity and recency of the inadmissibility cause, the potential impact of the applicant’s travel on U.S. public interests, and evidence of the applicant’s reformation or rehabilitation.
- When to Submit Applications for Department Review (9 FAM 305.4-3(E)(2)):
- This provision allows for submission to the State Department for review in cases where the waiver would advance significant U.S. public interests. Notably, the updated language highlights the positive effects of the planned travel, especially for applicants with U.S. higher education credentials seeking employment in their field.
- Waiver Expedite Requests (9 FAM 305.4-3(F)):
- Expedited processing of waiver requests is now more accessible for cases where there is a clear and significant U.S. public interest. This includes applicants with U.S. degrees or credentials who are pursuing employment in their field of study.
Implications for DACA Recipients and Other DREAMERs
The new guidance is particularly beneficial for DACA recipients and other DREAMERs. For these individuals, the primary concern often revolves around inadmissibility due to extended unlawful presence. The updated FAM provisions provide a clearer pathway for these applicants to secure the necessary waivers when applying for nonimmigrant visas.
For example, a DACA recipient who applies for an H-1B visa but faces inadmissibility due to prior unlawful presence can now benefit from the positive public interest consideration. This includes those who have obtained U.S. higher education degrees or credentials.
Practice Recommendations
Given the updated guidance, it is crucial for practitioners to advise their clients on the following steps:
- Advance Parole for DACA Beneficiaries:
- It is recommended that DACA recipients obtain an Advance Parole travel document before leaving the U.S. This allows them to return without triggering the unlawful presence bar, even if their visa application is denied. Refer to the Matter of Arrabally and Yerrabelly, which supports that temporary trips with Advance Parole do not constitute a “departure” under INA 212(a)(9)(B)(i).
- Expedited Waiver Requests:
- For applicants with U.S. degrees or skilled labor credentials, it is advisable to request expedited processing of their 212(d)(3) waivers, leveraging the public interest criterion outlined in the updated FAM.
Conclusion
The new 212(d)(3) waiver guidance from DOS represents a significant step forward in supporting nonimmigrant visa applicants, particularly DACA recipients and other DREAMERs. By recognizing the public interest in allowing these individuals to contribute to the U.S. economy, the updated FAM provisions provide a more flexible and expedited pathway for securing necessary waivers.
For more detailed guidance and assistance with 212(d)(3) waiver applications, please contact ALO. Our experienced attorneys are here to help navigate these complex processes and ensure that your applications are thoroughly and effectively prepared.
This article, under no circumstances, acts as legal advice; therefore, for any immigration questions, please contact your Attorney or the Ahluwalia Law Offices, P.C. (Team ALO).
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