This week, President Biden announced a new program that will provide relief to hundreds of thousands of spouses and children of U.S. citizens, in the most expansive protective action for undocumented immigrants since the introduction of DACA twelve years ago. We are thrilled and relieved to see some humanity inserted into a system that is so bereft of it, and we celebrate this announcement with our friends, family, and neighbors who will benefit directly.
It’s a common misconception that marrying a U.S. citizen will de facto confer permanent resident status (a “green card”). In reality, it’s much more complicated – if someone enters the U.S. without permission, and remains in the U.S. for at least 180 days, they are both ineligible to “adjust” to permanent resident status from within the U.S. (because they didn’t enter lawfully) and barred from returning to the U.S. if they were to depart and process their application for permanent resident status at a consulate abroad (because the time they’ve spent in the U.S. without authorization triggers a bar to return of either three years, for an unlawful stay of more than 180 days but less than one year, and ten years, for an unlawful stay of one year or more).
The new program announced by President Biden will allow spouses and children of U.S. citizens to apply for a form of relief called “parole-in-place,” which will allow them to apply for permanent resident status from within the U.S., provided the following conditions are met:
They’re legally married to a U.S. citizen or have a qualifying stepchild relationship with a U.S. citizen;
They’ve been living in the U.S. for at least ten years as of June 17, 2024;
They initially entered the U.S. without permission and have not left the U.S. since that entry; and
They don’t pose a threat to national security or public safety.
If the U.S. Citizenship & Immigration Services (USCIS) determines that an applicant has met the above criteria and warrants a favorable exercise of discretion, they will be granted parole for a one-time period of three years, and they will also be eligible for employment authorization for up to three years. The parolee must then submit their green card application within that three-year period.
While the focus with this announcement has been on family unity, the Biden Administration has also announced a process to facilitate the issuance of employment-based visas to DACA recipients and Dreamers (individuals who were brought to the U.S. without status as children) who have graduated from U.S. colleges and universities. Finally having a path to retain these employees long-term will provide a significant benefit to the U.S. employers who rely on their knowledge and expertise to fill critical roles.
While the proposed process to promote family unity is promising, it is not iron-clad. These protections will be implemented through executive order, which has become a popular tool to achieve policy goals in modern presidencies. Executive orders are enforceable to the extent they do not violate the Constitution or existing laws. But, they are not permanent. Executive orders may by revoked or modified by the President at any time. If there is an administration change, an incumbent President has the power to revoke an executive order. Checks and balances by the other branches of the federal government also come in to play. Congress may overturn an executive order by passing legislation that invalidates it (although the President may veto the legislation, which Congress could still override by a two-thirds majority). Executive orders can also be challenged in court, and judges may find the order invalid. Lastly, the Supreme Court can exercise its judicial review to determine whether an executive order is unconstitutional.
True immigration reform is only possible through congressional action. The last major U.S. immigration reform was enacted during the Reagan administration – nearly forty years ago – and immigration has since devolved into a largely intractable partisan issue. If you or someone you know is interested in voting in the next election and having an opportunity to influence the makeup of congress, check out our post on citizenship eligibility.
Importantly, while the announcement happened this week, the actual program has not yet begun. The specific details of the application process have yet to be announced, and the program may be subject to legal challenges that could delay its implementation, so USCIS is not currently accepting applications. If you think you might benefit from this new program, keep in mind that it’s too early to pay a lawyer to help you file an application, and please be wary of notarios and others posing as immigration experts who may tell you otherwise. The Biden Administration has indicated that they aim to have the program up and running by the end of the summer, and we will provide updates about program developments as they become available.
This post is for informational purposes only and is not intended to be used as legal advice. If you are interested in reviewing your potential eligibility for the new parole-in-place program with a trusted immigration lawyer, please reach out to info@veridian-immigration.com.
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