Biden Announces Two Executive Actions On Immigration To Begin Later This Summer

Today, the Biden Administration teased two new proposals to address the real challenges of our legal immigration system.

Eligibility and Process for PIP for Spouses and Step-Children of U.S. Citizens

First, in the coming weeks, the Department of Homeland Security will establish a parole-in-place (PIP) process for certain spouses and children of U.S. citizens, who would be eligible to adjust their status but for an unlawful entry. Typically, someone who entered the U.S. without inspection and wants a green card would need to leave the U.S. and apply for an immigrant visa at a U.S. consulate in their home country (consular processing), and be subject to a three/ten year bar for which they need a waiver. This can be a lengthy and complicated process, with the risk of being denied entry back into the U.S.  Parole in place allows certain undocumented immigrants to bypass this process by obtaining PIP, and then applying for a green card through adjustment of status, all without leaving the country or needing a waiver.

We have advocated for the expansion of parole policies for over a decade and believe that this policy proposal is on solid legal footing. Previous Administrations going back to President Dwight Eisenhower have used the parole power broadly for purposes of dealing with humanitarian disasters, refugee crisis, and for promoting family unity, and such programs have not been deemed unconstitutional. 

How this works 

A grant of parole or parole-in-place creates a lawful entry for these individuals through the issuance of an I-94. This I-94, which is typically given upon arrival with a visa or through inspection at a port of entry, fulfills the “inspection and admitted OR paroled” requirement for adjustment of status. As such, persons granted parole or parole-in-place can adjust their status in the United States through their US citizen immediate relatives. A parole-in-place policy (military PIP) exists for spouses, parents, widows(ers), and children of active duty service members, veterans, and enlistees. The announcement today will expand PIP to spouses and step-children of U.S. citizens.

To be considered on a case-by-case basis for this process, the Department of Homeland Security has stated that an individual must:

  • Be present in the United States without lawful admission or parole (i.e. person did not enter lawfully);
  • 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 or be a step-child to a U.S. citizen as of June 17, 2024;
  • Individuals must have no disqualifying criminal history or otherwise constitute a threat to national security or public safety and should otherwise merit a favorable exercise of discretion.

Under this process, a qualifying individual may be granted parole-in-place on a case-by-case basis for up to three years. If paroled, these noncitizens will generally be able to apply for lawful permanent residence without having to leave the United States. People in removal proceedings will also qualify though it is unclear whether the policy will also apply to those with final orders of removal. Qualifying individuals will no longer have to go through the lengthy provisional waiver process and depart the United States for immigrant visa interviews in their countries of origin.

The Biden Administration has not issued any guidance beyond this. It is unclear whether the program applies to spouses of U.S. citizens who naturalize after June 17, 2024. The program does not apply to any other immediate relatives such as parents of U.S. citizens. It is also unclear what would be construed as a “disqualifying criminal history” under this program. We do not know if those persons subject to the permanent bar due to multiple unlawful entries can obtain PIP only for three years (they certainly cannot adjust their status). Finally, we do not know if step-children can apply for PIP without their non-citizen parent in cases where the non-citizen parent is not eligible for PIP. The DHS states that further information regarding eligibility and the application process, including a notice in the Federal Register, will be published later this summer.

USCIS has released some Frequently Asked Questions about the announcement, including the following:

What can I do now to prepare my 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.

Those who are interested in this process should also consider opening or updating their myUSCIS account at https://my.uscis.gov.

Easier NIV Waivers

Second, and more obscurely, the Department of Homeland Security is also working with the Department of State to improve the employment visa process for certain non-citizens who have graduated college and have a “high-skilled job offer” as the Administration believes retaining this talent is critical to the national interest. The DOS guidance is available here.

Currently, anyone who is out of status (including DACA), but applying for non-immigrant employment-based status such as a H-1B visa or O-1 must leave the United States to apply for employment visas at consulates in their home countries. This is because lawful non-immigrant status is required to switch to an employment-based status inside the United States (change of status). While the employment-based petition will be approved, a person without lawful status must leave the United States to procure a visa, and re-enter to switch to the new status. Leaving the United States can be risky for persons who may have unlawful presence as the departure triggers a ban on re-entering the US for 3 or 10 years (depending on the days of unlawful presence accrued past the age of 18). To overcome this, an applicant for a non-immigrant visa needs a special waiver under INA 212(d)(3) to pardon the unlawful presence, but the waiver can only be filed after the applicant is already abroad, and has been denied the visa. Obtaining a waiver is uncertain, lengthy and could result in the applicant losing their job offer due to an extended absence from the United States. Because of this uncertainty, the Biden Administration believes that few DACA recipients or persons who have previously violated status even try to pursue employment-based visas even though they may be eligible. 

Per the White House press call, the forthcoming guidance will provide “additional certainty and speed around the visa process so that employers are able to make informed decisions” before a DACA-recipient departs the United States to consular process for an employment visa abroad. The Department of State has stated that the Foreign Affairs Manual will be updated in the next 30 days with more clarity for consular officers with respect to recommending waivers. DOS maintains that it is not conferring any new benefits and that the guidance is not limited to DACA recipients. The new rules would continue to require people without lawful non-immigrant status to depart the United States and apply for a visa, so the change will likely be minuscule. Ideally, much like the stateside provisional waiver for immigrant visas, perhaps the Biden Administration should consider allowing individuals to apply for a 212(d)(3) waiver prior to departing the United States for their consular interview abroad. However, actual fixes to the legal immigration process requires vision that this Administration seems to lack. More details are forthcoming from the Administration on exactly what will change, who this will affect, and how to access this benefit. Unless the waiver is guaranteed or stateside, we don’t believe that people would access it in droves especially those with DACA. 

Exercise Caution

For those who are eager to apply or get more information, please know that we are excited about the positive impact that these policies can have, however, the programs announced today are still being finalized. These proposals have not been implemented yet. There is no final rule or application process. We cannot ascertain whether someone is eligible based on mere proposals or evaluate your eligibility at this time. There is also the looming prospect of litigation, and injunction while litigation plays out, even if the proposals are finalized into actual policies. As immigration advocates, we are committed to keeping you informed, and we’ll be sharing more details as soon as possible. Please be alert about notario fraud and scammers and do not pay anyone to file applications on your behalf based on these proposals at this time. When in doubt, consult with an experienced and licensed immigration attorney about your existing options.

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