D3 Waiver + H1B
 

Hey all,

I was reading a resource guide for undocumented students and came across what is known as the D3 waiver. According to what I have read, it excuses most grounds of inadmissibility sans Nazi war crimes and espionage, which I don't think apply to any of us ;-).

You would typically apply for this waiver after being granted or while applying for a nonimmigrant visa (such as an H1B). The waiver would allow you to enter the US if your visa application is approved and you have a valid reason for being in the country - which could range from employment to just visiting family members.

I am considering this route to have a backup plan in case DACA gets undone, then I would at least still be able to work. Typically companies don't sponsor H1B if you're out of status, but it appears this waiver can circumvent that. Here's some more info

http://www.smartimmigrationlawyer.com/212d3-waiver/
http://www.uscis.gov/i-192

Has anyone else applied for or heard of this waiver? I feel like it's been sitting under our noses the whole time!

Re: D3 Waiver + H1B
 

INA 212(d)(3) waiver can in fact go around most grounds of inadmissibility aside being a nazi, and/or being involved in genocide. This waiver is applicable ONLY to non-immigrant visas.

Problem being is that:
The consulate has to agree to your request and actually issue you the visa.
CBP has to agree to your waiver request.
So that's two groups that can say no with basically no appeal avenue.

Problem being that for purposes of permanent residency you're still banned for 10 years. Though you CAN wait it out in US. Get H1B for 3 years. Extend it for 3 more years. Your employer gets you an I-140 during that time. Then you keep the I-140 alive by notifying the NVC every year that you haven't abandoned it, you just have to wait, and use the approved I-140 to get 1 year H-1B extensions until your ban runs out. Once the ban is done you file for AOS.

Basically - your biggest problem is getting back into the country. There were people on immigrate2us.net who were successful in getting the D3 waiver done. You should ask around there.

Re: D3 Waiver + H1B
 

Hmm.. my hope was to apply for AP in conjunction with going for the visa application at the consulate abroad. Maybe a 1 year AP. Then I would have a free ticket for coming back in.

Also, does DACA stop the accruing of unlawful presence? i.e. - did my 10 year start counting down once I received DACA? I know it's not an official status, but maybe its somewhere in the middle.

Re: D3 Waiver + H1B
 

You can definitely use AP to attend the consular interview. Though that's still uncharted waters. I was a little wrong in my previous post, you'll file the waiver request with the consulate, and if they agree to the waiver request and issue you a visa you're able to return as an H1B holder, if not the AP is a good backup to have.

Time during DACA doesn't count as unlawful presence - but the 10 year ban doesn't kick in until you depart. Currently the assumption is that it doesn't trigger if you leave with AP and return with it. Leaving with AP and returning on H1B would most likely trigger it. So unfortunately you have to chose: H1B and a 10 year ban, or no ban and no visa.

Re: D3 Waiver + H1B
 

Ahh, that's a tough one. H1B and ten year ban. If I were to get denied (on renewal) or fall out of status with my H1B, what is the worst that could happen? I am thinking my ban would just reset to 10 years? Or does it count as a second infraction, which would constitute to a lifetime ban?

I'll PM you about the company stuff.

Re: D3 Waiver + H1B
 

You won't require another waiver on renewal, and a renewal H1B doesn't need to jump through the "no other workers available" hoops that original approval needs. As long as the company doesn't go under - as long as you get the original approval you'll be fine.

In regards to the 10 year ban, it will count from your last departure from US. So let's say that you leave in 2016 it will run out somewhere in 2026. Falling out of status will not affect that ban in any way. Also if during that time you marry a US citizen you can seek AOS together with an hardship waiver stateside.

If you entered legally I'd personally look into a marriage to a US citizen.

If you entered illegally then you can clear that using advance parole, even if there's no prospective candidates, travel on AP doesn't trigger the 10 year ban and that legal entry is yours forever. Also entry as a parolee makes you an "arriving alien", which is a strange concept that has its own rules, namely:
1) You can adjust status (via USC immediate relative, or 245(i)) even if you're in removal proceedings or subject to a final ban, however,
2) You do not have the right to have your AOS application reviewed by a judge if you get denied (with the exception that if you became an arriving alien via AP from said petition). (Like let's say you arrived on a B-2 visa and overstayed, married a US citizen, filed for AOS, you travel on AP that you got via the AOS application, a judge can review this AOS application but no subsequent one).

So let's say that Trump wins presidency and goes nuclear on us. You get an NTA, you can basically say fuck it, a few years pass - you marry a USC, you can adjust status despite an outstanding order.

I got your PM and will respond to it soon.