Breaking Down President Biden’s Executive Order Granting Legal Protections to Undocumented Spouses of U.S. Citizens, and Creating Opportunities for Dreamers

Source: Flickr Creative Commons Attribution Gage Skidmore

By now you’ve seen the headlines in the news. Now let us break down President Biden’s historic executive action on immigration and get to the nitty gritty of everything you need to know about this order designed to keep families together and provide further opportunities for Dreamers.

Process to Promote the Unity and Stability of Families – Legalization of Undocumented Spouses of U.S. Citizens

Today, June 18, 2024, President Biden announced a new process that will allow for the legalization of undocumented spouses of U.S. Citizens who have been residing in the United States for at least ten years as of June 17, 2024.

By virtue of the President’s executive authority, the Department of Homeland Security (DHS) in coordination with the U.S. Citizenship and Immigration Services (USCIS) will create a new discretionary “parole in place” program for undocumented spouses of U.S. Citizens to legalize their status while remaining in the United States.

Those who are approved after DHS’s case-by-case assessment of their application will be afforded a three-year period to apply for permanent residency. They will be allowed to remain with their families in the United States and be eligible for work authorization for up to three years.

Individuals must meet certain eligibility requirements to become lawful permanent residents (green card holders).

Below are answers to frequently asked questions regarding this executive order.

Q: What are the requirements for spouses to be eligible to apply for parole and legalize their status in the United States?

To be considered for a discretionary grant of parole in place under this process, spouses of U.S. Citizens must:

Be present in the United States without admission or parole;
Have been continuously present in the United States for at least 10 years as of June 17, 2024; and
Have a legally valid marriage to a U.S. citizen as of June 17, 2024
Have no disqualifying criminal history or otherwise constitute a threat to national security or public safety and
Merit a favorable exercise of discretion to receive parole

Q: Are Noncitizen Children of Undocumented Spouses eligible for parole?

Yes. In addition to undocumented spouses of U.S. Citizens, their noncitizen children may also be considered for parole on a case-by-case basis under this process along with their parent, if they are:

Physically present in the United States without admission or parole and
Have a qualifying stepchild relationship with a U.S. citizen parent as defined by the Immigration and Nationality Act as of June 17, 2024

To qualify as a stepchild under the Immigration and Nationality Act, the noncitizen child must be unmarried, under the age of 21, and the marriage of their noncitizen parent and U.S. citizen stepparent must have taken place prior to the child’s 18th birthday.

Q: How is this new parole program different from the current laws in place?

This new “parole in place” program will eliminate the need for spouses of U.S. Citizens to travel outside of the United States to legalize their status through what is known as an extreme hardship “waiver” process.

The “waiver” process is an extremely cumbersome and lengthy process that requires the undocumented spouse to depart the United States and be interviewed and approved for an immigrant visa overseas. Only once the visa is issued can the applicant return to the United States.

This process has unnecessarily torn families apart and created much fear and uncertainty among applicants forced to remain away from their families for prolonged periods of time. Many applicants are the sole providers for their families and take care of children with disabilities, making this process extremely difficult to bear.

This executive action will instead open a pathway to permanent residence by allowing eligible undocumented spouses of U.S. Citizens to adjust their status to permanent residence while in the United States, without requiring them to depart the country.

Q: When will the program be available?

This program is expected to launch by the end of the summer after a Federal Register notice detailing the application process and other information is formally published.

The Federal Register notice will provide additional guidance on requirements to be considered for parole in place. This notice will explain what forms to file, the associated filing fees, any required documentation, and supporting evidence that will be needed to request parole in place.

Q: Can I apply for the parole program with USCIS prior to the start date of the process?

No. USCIS will reject any filings received before the date when the application process formally begins (to be announced in the forthcoming Federal Register notice).

Q: What is the parole application process like?

Complete details of the application process are not yet available. But here is what we know:

A Notice will soon be published in the Federal Register that will contain detailed information regarding eligibility and the application process with USCIS. Once the Federal Register Notice is released, we will summarize its contents on our blog.
To be considered for parole, an individual will need to file a form with USCIS along with supporting documentation to show they meet the requirements and pay a fee.
As mentioned, USCIS is expected to begin accepting parole applications later this summer.

Once an applicant has submitted a parole in place request, USCIS will determine on a case-by-case basis whether a grant of parole is warranted based on a significant public benefit or urgent humanitarian reasons and whether the applicant merits a favorable exercise of discretion.

All requests will take into consideration the applicant’s previous immigration history, criminal history, the results of background checks, national security and public safety vetting, and any other relevant information available to or requested by USCIS.

Q: Once issued what will be the duration of parole? What happens when it ends?

Under this process, a qualifying individual may be granted parole on a case-by-case basis for up to three years. This period provides an opportunity for eligible spouses of U.S. citizens granted parole to file a Form I-485, Application to Register Permanent Residence or Adjust Status (and concurrent Form I-130, Petition for Alien Relative, if applicable). At the conclusion of the parole period, USCIS anticipates that these individuals will have either a pending adjustment application or final adjustment adjudication completed.

Q: What can I do now to prepare my parole application before the process begins?

Individuals should wait for additional information to be issued, including the date on which the process begins, when applications will be accepted, and what forms to use to apply for parole. Until then, individuals may consider preparing by gathering evidence, including:

Documentation to establish that the noncitizen has been continuously present in the United States for at least 10 years as of June 17, 2024;
Evidence of a legally valid marriage to a U.S. citizen as of June 17, 2024; and
Evidence of additional favorable discretionary factors that the applicant would like USCIS to consider.

Q: How many people can be expected to benefit from the “parole” program?

The Department of Homeland Security (DHS) estimates that approximately 500,000 spouses of U.S. citizens could be eligible for the parole program, while approximately 50,000 children of these spouses could also benefit.

Q: If USCIS denies my application for parole, will I be placed in removal proceedings?

If USCIS denies a request for parole, USCIS maintains discretion to issue a Notice to Appear (NTA) or refer the case to ICE for possible enforcement action consistent with the Guidelines for the Enforcement of Civil Immigration Law issued by Secretary Mayorkas on September 30, 2021.

Q: If I have criminal history, can I apply for parole under this process?

All applicants must undergo national security and public safety vetting as part of this process. Those who pose a threat to national security or public safety will be disqualified from this process and, where appropriate, may be referred for law enforcement action.

Noncitizens who pose a threat to national security or public safety will not be eligible for this process. If a noncitizen poses a threat to national security or public safety, DHS will detain, remove, or refer them to other federal agencies for further vetting, investigation, or prosecution as appropriate.

Disqualifying criminal history includes criminal convictions that are likely to render the individual statutorily ineligible for adjustment of status, as well as convictions that do not render noncitizens statutorily ineligible for adjustment of status but nevertheless warrant their disqualification from this process in the exercise of discretion.

If you have criminal history, please consult with an experienced immigration attorney to evaluate your background.

Q: If I am approved for parole, when can I apply for an employment authorization document (EAD)? Can I apply for an EAD at the same time as when I apply for parole?

An individual who is granted parole is immediately eligible to apply for an Employment Authorization Document (EAD) from USCIS and can do so by submitting a completed Form I-765, Application for Employment Authorization, using the (c)(11) category code. Further information about the process to apply for an EAD will be included in the forthcoming Federal Register Notice.

Q: How long can it take to receive a decision on my employment authorization application?

Once Form I-765 is filed, application processing times will vary. Please visit the USCIS processing time webpage for the current processing times depending on the service center processing your application.

Work Visa Opportunities for Dreamers and Other Undocumented Immigrants

Separately, the President’s executive order will also streamline the process for DACA (Deferred Action for Childhood Arrivals) recipients and other undocumented immigrants to apply for temporary nonimmigrant visas, such as H-1B visas for highly skilled professional workers.

To be eligible, applicants must have graduated from U.S. accredited institutions of higher education.

Under the President’s executive power, the State Department (DOS) in coordination with the Department of Homeland Security (DHS) will issue new guidance clarifying that DACA recipients should be presumed eligible for non-immigrants visas if they leave the United States to be interviewed at U.S. Embassies and Consulates for those visas.

By clarifying and enhancing the existing visa application processes, the State Department’s policies will enable U.S. employers to retain talented workers who have received their degrees in the United States and have landed jobs that are in high demand in skilled professions.

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