The June 18, 2024, fact sheet put out by the White House, FACT SHEET: President Biden Announces New Actions to Keep Families Together | The White House said that the announcement would allow individuals, including DACA recipients and other Dreamers, who have earned a degree at an accredited US institution of higher education in the United States, and who have received an offer of employment from a US employer in the field related to their degree, to more quickly receive work visas; and that recognizing that it is in our national interest to ensure that individuals who are educated in the US are able to use their skills and education to benefit our country, the Administration is taking action to facilitate the employment visa process for those who graduated from college and have a high skilled job offer, including DACA recipients and other Dreamers. 

To facilitate this, the DHS Fact Sheet: DHS Announces New Process to Promote the Unity and Stability of Families | Homeland Security said that DHS will join the Department of State in an effort to more efficiently facilitate certain employment-based nonimmigrant visas for eligible individuals, including Deferred Action for Childhood Arrivals (DACA) recipients and undocumented noncitizens, who have graduated from an accredited US institution of higher education – by clarifying and enhancing the existing process, the Department of State’s policy will give US employers increased confidence that they can hire the talent they need, and that they will be able to quickly get to work – and that DHS will implement the Department of State’s policy update. 

Does the Administration plan to only utilize existing pathways of nonimmigrant visas? Or is there planning for another type of program like entrepreneur parole that was declared by Executive Order in President Obama’s Administration? If not, the more common visas would appear to be H-1B specialized occupation workers, O-1 extraordinary workers, and TN professional visas for nationals of Canada or Mexico. If confined to the existing pathways, it would appear that the numbers to be benefited will be not be large except for TN as many of the undocumented, DACA holders and other Dreamers are from Mexico. Most H-1B visas are capped at 85,000 per year, and with the number of applicants selected for FY 2025 registration thus far only 25.6% (120,603 of 470,342 registration candidates) https://www.uscis.gov/working-in-the...ration-process, the addition of undocumented graduates without corresponding increase in H-1B numbers would only drive the percentage down. H-1B visas without numerical limit are available for cap-exempt employers, but those are confined to hirings by institutions of higher education, nonprofit organizations affiliated with institutions of higher education, nonprofit research organizations, and government research institutes.

The H-1B of all existing pathways is the ideal vehicle except for the limited numbers of available visas. It has the advantage over other visas except for L-1 intracompany transferee visas (generally inapplicable to the situation because of the requirement of prior overseas one year employment as manager, executive, or specialized knowledge worker) of being a dual intent visa meaning that applicants can still receive visas although they have no intent to return to their home countries. This is not the case with other visas which either require nonimmigrant intent or exist in a gray area. TN requires nonimmigrant intent.

F-1 optional practical training (OPT) and the possible follow-up STEM OPT do not appear to be work visa options according to the stated requirement that applicants have a high skilled job offer from an employer as OPT is generally seen as training in which the applicant is gaining skills rather than using them professionally. In addition, it is a visa requiring nonimmigrant intent.

It appears at this stage that the Department of State is mainly contemplating traditional visas that are precipitated by USCIS approval on form I-129, which likely means H-1B and O-1 petitions generally. Its communiqué, Easing the Nonimmigrant Visa Process for U.S. College Graduates (state.gov) in answer to the question “How Can an Individual Apply for Petition-based Nonimmigrant Work Visa?” said “Before an applicant can apply for an H-1B or other temporary worker visa, US Citizenship and Immigration Services (USCIS) must generally first approve a petition for a nonimmigrant worker, form I-129… Individuals may apply for a nonimmigrant visa after USCIS has approved the petition…” 

Assuming that work visa eligibility is established, coordination between DHS and the Department of State in the form of §212 (d) (3) expedited waivers of inadmissibility due to the 3 or 10 year bars attendant to remaining unlawfully in the US for six months or one year respectively after the age of 18 could solve the problem of return to the US on a temporary basis to work for undocumented graduates, but is there a contemplated solution for situations in which consular officers may have objections to the issuance of visas on other grounds? Would the failed applicants be allowed to return in some way?

For persons applying under TN, the Department of State would not be involved with waivers, and such would be a procedure handled solely by Customs and Border Protection (CBP) through its Admissibility Review Office (ARO).

While we highly applaud the Administration’s initiative, we hope that it has considered or will consider the above while publishing its Federal Register notice in the near term.