Biden Announces Plan to Give DACA Beneficiaries a Pathway to Legal Status

FAIR Take | June 2024

Twelve years after President Obama created the Deferred Action for Childhood Arrivals (DACA) program, President Biden announced his plan to create “pathways” that allow DACA beneficiaries to gain legal status. While details of the plan have yet to be unveiled, the plan reportedly will require State Department consular officers to recommend the waiver of laws that would normally bar illegal aliens from being admitted.

The mechanism to achieve this plan for DACA recipients is reportedly the “D-3 Waiver,” named after section 212(d)(3) of the Immigration and Nationality Act. That provision allows the government to waive grounds of inadmissibility (such as failure to have the proper documentation) that would normally bar an alien from being admitted into the U.S. With the waiver in hand, aliens could then depart and return to the U.S., where Customs and Border Protection (CBP) agents would approve the State Department waivers and formally admit the aliens into the U.S. And voila!! By abusing the State Department waiver process, illegal aliens will suddenly be allowed to depart and gain legal admission to the U.S. unimpeded by normal application of the law.

While it did not make headlines, President Biden announced the DACA initiative at the same time he announced his “parole-in-place” program to illegal alien spouses. During a background press call, the White House told reporters that the Departments of State and Homeland Security will take action to enable DACA recipients and others without legal status to adjust their status and obtain employment-based visas, such as the H-1B specialty occupation visa. Such a move would also put them on a path to citizenship since one is able to apply for Lawful Permanent Residence (LPR), or green card, while working on an employment-based visa.

In the announcement, the White House said its program would allow DACA recipients and other Dreamers “who have earned a degree at an accredited U.S. institution of higher education in the United States, and who have received an offer of employment from a U.S. employer in a field related to their degree, to more quickly receive work visas.” The accompanying White House Fact Sheet stated that it was in the “national interest” to “facilitate the employment visa process” for the “dreamer” population because they “are part of the social fabric of our country.”

Open-borders advocates have long been pushing the Biden Administration to “streamline” the D-3 waiver process, calling it “risky and uncertain” These advocates, including FWD.us, have argued that reforming the process would “reduce the amount of time an approved individual would need to be outside the U.S., and provide more certainty that they would be granted a visa, and thus be able to return to the U.S.”

The scope of Biden’s latest “pathway” for illegal aliens could be enormous. According to the Higher Ed Immigration Portal, there are over 400,000 “undocumented” students in American higher educational institutions. And, according to June statistics released by U.S. Citizenship and Immigration Services (USCIS), there are 528,300 active DACA recipients in the country.

However, the initiative was met with immediate resistance. Kevin Lynn, founder of U.S. TechWorkers opposes the President’s plan and said “[Supporters] shroud it under the banner of social justice, but all they’re doing is displace Americans, lower salaries and lower the quality of life of working Americans.”

Others are concerned about public safety. Many DACA beneficiaries have criminal histories. According to USCIS data released in 2018, nearly 60,000 DACA requesters were approved for deferred action despite having an arrest. Another 7,800 approved beneficiaries were arrested after having been granted DACA. Some with DACA had offenses such as assault and battery, rape, murder, and drunk driving. Shockingly, the agency review found that 199 individuals who requested DACA had 10 or more arrests. Despite this data, there is no word yet on how, or whether, the Biden Administration plans to vet DACA beneficiaries seeking waivers under its new program.

Greater details about the President’s executive orders may be released in the days and weeks ahead. The Department of State announced that it would issue guidance to consular offices in the next 30 days. To read more about the President’s executive order related to parole-in-place, read FAIR’s analysis here.