Biden Announces Immigration Protections for Up to 550,000 Spouses and Children of US Citizens

On June 18, the Biden administration announced two major new policies which may help provide streamlined paths to legal status for certain long-time undocumented immigrants. The first policy will allow undocumented spouses of U.S. citizens who have been in the country to apply for “parole in place,” a protection against deportation which will also allow many to access an easier path to permanent resident status. The second policy will allow individuals with DACA and undocumented immigrants who have graduated college to apply for certain employment-based nonimmigrant visas more easily.

Individuals who are married to U.S. citizens are generally eligible to obtain permanent resident status if their spouse applies on their behalf. However, for individuals who are in the country already following an unlawful entry, the process can be more complicated. They are generally required to leave the country to get permanent resident status and risk the possibility of being barred from reentering for years, possibly permanently. The Biden administration’s action will let most people in this situation apply for green cards without ever leaving the country and facing the possibility of separation.

The White House estimates that at least 500,000 undocumented spouses of U.S. citizens may qualify for this status, as well as 50,000 stepchildren of U.S. citizens.

What is Parole in Place?

Parole in place refers to the practice of granting “humanitarian parole” to a noncitizen who is already inside the United States. Parole is a form of immigration relief which allows a person who is otherwise inadmissible to enter or remain in the United States for a specific length of time. Individuals who have been granted parole are protected from deportation while their status is valid and may apply for work authorization if necessary.

Parole in place has previously been used for family members of individuals serving in the armed forces. The “Military Parole in Place” program, begun in 2010, has allowed thousands of undocumented family members of soldiers to obtain protection from deportation. Congress has even supported the program, reaffirming “the importance of the parole in place authority” in the 2020 National Defense Authorization Act.

How Can Parole in Place Unlock a More Streamlined Green Card Process?

Individuals who are eligible for green cards are required to complete the process in one of two ways: by obtaining an immigrant visa at an embassy or consulate outside the country or applying to “adjust status” from inside the United States. The only people who are eligible to adjust status are those who are in the United States after having been “inspected and admitted or paroled.” That means the people who can obtain permanent resident status without leaving the country to get a visa are, with a few exceptions, people who originally entered the country on a visa, or those who have ever been granted parole. Undocumented immigrants who came across the border without being “inspected” are required to leave the country to complete the process before a U.S. consulate or embassy.

However, due to a 1996 law, the moment an undocumented immigrant who has been in the country for more than a year leaves the United States, they are barred from reentering for 10 years. This bar applies even for people married to U.S. citizens. That means that undocumented immigrants married to U.S. citizens who originally entered without inspection are eligible for permanent resident status but are required to wait outside the country for 10 years to get visa green card.

While there is a waiver of this 10-year bar, it is only available to people who can prove that 10 years of separation would cause “extreme hardship” to their spouse. These waivers are currently taking U.S. Citizenship and Immigration Services roughly 3.5 years to adjudicate, making the entire process lengthy, expensive, and uncertain. As a result, many undocumented immigrants married to U.S. citizens don’t want to risk the chance of a decade of separation and have chosen not to apply for the status.

Any person who is granted parole as part of this program would then be eligible to adjust status without leaving the country, presuming there are no other legal obstacles in place. They wouldn’t be subject to the 10-year bar or risk years apart from their loved ones. And even if a future administration revokes the program or it’s struck down in court, anyone previously granted parole would still be eligible to apply for a green card without leaving the country.

Who Will Qualify for Parole Under This New Program?

The Biden administration says that full details of the program will be published in the upcoming weeks through a notice in the Federal Register. Without this information, the exact details of the program remain unclear. However, the June 18 announcement states that people seeking parole in place under this new program must meet the following standards:

  • Have continuously resided in the United States since June 17, 2014.
  • Were physically present in the United States on June 17, 2024.
  • Have been legally married to a U.S. citizen as of June 17, 2024.
  • Entered the United States without admission or parole and do not currently hold any lawful status.
  • Have not been convicted of any disqualifying criminal offense.
  • Do not pose a threat to national security or public safety.
  • Merit a favorable exercise of discretion.

In addition, minor children of applicants, who are also the stepchildren of the applicant’s U.S. citizen spouse, will be eligible to apply alongside their parents.

At this time, there is no exact guidance on how people can show they weren’t convicted of disqualifying offenses, do not pose threats to security, or merit a favorable exercise of discretion. The Biden administration will likely publish further information when the program rolls out in the next couple of months. It is also unclear at this point whether the administration will charge a fee for applicants, like it did for the DACA program.

How is the Biden Administration Working to Lift Barriers for DACA Recipients and Undocumented College Students?

A second action announced by the Biden administration on June 18 involves a streamlined process for individuals granted DACA and undocumented immigrants who have graduated from college to seek nonimmigrant work visas such as H-1B visas or O visas. As of 2021, the American Immigration Council estimated that there were over 400,000 undocumented students enrolled in U.S. colleges and universities, many who do not have DACA thanks to restrictions created by the program and litigation which has halted new applications.

The Biden administration’s new policy will direct the State Department to update its guidance on the issuance of “212(d)(3)” waivers. Like those impacted by the parole in place policy, many DACA recipients and undocumented college students would face the 10-year bar on reentering if they ever leave the United States to obtain a work visa. The 212(d)(3) waiver process would allow them to obtain the visa without facing the 10-year bar.

The Biden administration says these streamlined waivers would be available to current DACA recipients or undocumented immigrants who have graduated from a college in the U.S., and who have received an offer from an U.S. employer to work in their field. This would essentially remove obstacles to a more stable immigration status that applicants may otherwise have been eligible for.

Will These Programs Face Legal Challenges?

Yes. American First Legal, an organization co-founded by former Trump advisor Stephen Miller, has already pledged to file a lawsuit to block the parole in place program. In the past, the organization has partnered with the State of Texas on several immigration-related lawsuits. There have been no announcement so far about any litigation over the new waiver process for DACA recipients and undocumented college graduates.

As a result, there is a possibility that the parole in place program will not go into effect, similar to how President Obama’s 2014 Deferred Action for Parental Accountability (DAPA) program was blocked before anyone was ever granted status.

How Can Congress Resolve This Issue Permanently?

Both actions today revolve around helping people avoid the harsh impact of the 3-and-10 year bars that Congress put into the law in 1996. At the time, Congress believed that this punishment would discourage people from coming to the country across the border. However, decades of evidence have proven this to be wrong. If anything, the bars have locked many undocumented immigrants in the country, including huge numbers of people who do have a path to regularizing their status but can’t risk a decade of separation.

While Biden’s actions will help alleviate this issue for a portion of the undocumented population, it won’t resolve the broader problems created by the bars. The next time Congress addresses immigration, it should get rid of this counterproductive and harmful policy and bring immigration law back to what it was for most of modern history.

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