On July 17, 2024, the White House announced that USCIS will begin accepting applications for the new parole in place program on August 19, 2024. Additional details on the application process are not yet available, though you may begin collecting the supporting documents that will be required to demonstrate your eligibility. These include: evidence of your marriage to a U.S. citizen as of June 17, 2024; identity documents (e.g., passport bio page, birth certificate); evidence of your spouse's U.S. citizenship (passport, birth certificate, or Certificate of Naturalization); documentation to prove your continued presence in the U.S. dating back to June 17, 2014, which might include rent receipts, utility bills, school records, medical records, affidavits, birth certificates of children born in the U.S., tax returns, etc. For additional details on the new affirmative relief program, please refer to our original post, copied below.
Importantly, it is still too early to apply, so beware of individuals posing as immigration experts who may tell you otherwise.
On July 15, 2024, the U.S. Department of State announced an update to the Foreign Affairs Manual at 9 FAM 305.4, which provides additional guidance to consular officers adjudicating requests for waivers under INA Section 212(d)(3) ("D3 waivers"). Quick background: DACA recipients and other Dreamers who have completed degrees at U.S. institutions and/or amassed significant professional experience working for U.S. employers, and are therefore now eligible for employment-based visas and green cards, are generally barred from receiving those benefits if they did not enter the country lawfully and/or have accumulated significant periods of "unlawful presence" in the U.S. The D3 waiver excuses a number of grounds of inadmissibility to the U.S., including unlawful presence (which is the barrier most Dreamers face). However, the uncertainty involved in departing the U.S. and pursuing a D3 waiver – the requirements for which had not previously been clearly documented in the Foreign Affairs Manual – has understandably presented a significant barrier, keeping highly skilled employees from finally obtaining their long-term, lawful status in the U.S.
The updated FAM now includes this added guidance to consular officers adjudicating waiver requests:
NOTE: In general, you should consider cases where the applicant has graduated with a degree from an institution of higher education in the United States, or has earned credentials to engage in skilled labor in the United States, and is seeking to travel to the United States to commence or continue employment with a U.S. employer in a field related to the education that the applicant attained in the United States, to have a positive effect on U.S. public interests.
Additionally, the FAM now notes that D3 waiver expedite requests should be considered where there is "clear and significant U.S. government or public interest" (emphasis added). The FAM now goes on to specify the parameters of public interest as follows:
As described in 9 FAM 305.4-3(C)(c)(3) with regard to recommending a waiver, there is a clear and significant U.S. public interest in asking CBP/ARO to expedite a waiver request if the applicant has graduated with a degree from an institution of higher education in the United States, or has earned credentials to engage in skilled labor in the United States, and is seeking to travel to the United States to commence or continue employment with a U.S. employer in a field that requires the education that the applicant attained in the United States.
The fear and uncertainty of departing the U.S. to apply for a slightly less nebulous but still highly discretionary waiver may continue to prevent many eligible applicants from attempting it, so it is yet to be seen whether these adjustments will achieve President Biden's stated goal of allowing Dreamers who have earned degrees at U.S. institutions and received offers of employment from U.S. companies to obtain their visas and long-term legal status more quickly.
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On June 18, 2024, 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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