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

By now you’ve seen the headlines in the news. Now let us break down President Biden’s new 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.

Today, June 18, 2024, President Biden announced a new process that will allow for the protection and 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. Those eligible 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) under this new parole process.

Below Are Answers to Frequently Asked Questions Regarding This Executive Order.

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

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.

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.

USCIS will begin accepting applications for parole in place starting on August 19, 2024. Further details about the forms and filing fees have not yet been released but will soon be published in a forthcoming Federal Register notice.

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).

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.

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.

While the application process will not open until August 19, 2024, potential applicants should begin gathering supporting documentation to establish their eligibility for parole in place, well before the start of the application period.

USCIS has recommended for applicants to gather the following evidence in support of their application:

• Evidence of a legally valid marriage to a U.S. citizen as of June 17, 2024, such as a marriage certificate;

• Documentation of proof of identity, including expired documents may include:
• Valid state or country driver’s license or identification;
• Birth certificate with photo identification;
• Valid passport; or
• Any government issued document bearing the requestor’s name, date of birth, and photo.

• Evidence of your spouse’s U.S. citizenship, such as a passport, birth certificate or Certificate of Naturalization;

• Documentation to establish your continued presence in the United States for at least 10 years, as of June 17, 2024. While more information will be made available in the forthcoming Federal Register Notice and subsequent FAQs, examples of documentation could include copies of:
• Rent receipts or utility bills;
• School records (letters, report cards, etc.);
• Hospital or medical records;
• Attestations to your residence by religious entities, unions, or other organizations, identifying you by name;
• Official records from a religious entity confirming participation in a religious ceremony;
• Money order receipts for money sent into or out of the United States;
• Birth certificates of children born in the United States
• Dated bank transactions;
• Automobile license receipts, title, or registration;
• Deeds, mortgages, or rental agreement contracts;
• Insurance policies; or
• Tax returns or tax receipts.

For noncitizen children of undocumented spouses (stepchildren), evidence of eligibility could include:

• Evidence of the child’s relationship to the noncitizen parent, such as a birth certificate or adoption decree;
• Evidence of the noncitizen parent’s legally valid marriage to a U.S. citizen as of June 17, 2024, such as a marriage certificate; and
• Evidence of the child’s presence in the United States as of June 17, 2024.

Once you have gathered the above documentation, it is important to contact an immigration attorney for a detailed consultation ahead of the August 19th application start date.

Once you have gathered the above documentation, it is important to contact an immigration attorney for a detailed consultation ahead of the August 19th application start date.

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.

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.

No. By law, parole is only available to noncitizens who are “applicants for admission” under Section 235(a) of the INA, 8 U.S.C. § 1225(a). Therefore, parole in place under this process may be granted only to certain individuals who are present in the United States without admission.

This process is not available to those who were previously lawfully admitted to the United States. However, an individual may be eligible to apply for adjustment of status to that of lawful permanent resident (LPR) without parole in place if previously lawfully admitted and applying as an immediate relative of a U.S. citizen.

Noncitizens in removal proceedings may apply for parole in place under this process before USCIS if they otherwise qualify under this process. USCIS will weigh, on a case-by-case basis, the existence and circumstances of the removal proceedings, as well as the applicant’s positive equities, in determining whether to grant parole in place.

However, a noncitizen who is in removal proceedings because they are an enforcement priority under the Guidelines for the Enforcement of Civil Immigration Law, issued by Secretary Mayorkas in September 2021, will be disqualified from receiving parole in place pursuant to this process.

If you are in this situation, please contact us for a thorough consultation.

The Guidelines for the Enforcement of Civil Immigration Law direct the Department to focus its limited resources on noncitizens who pose a threat to our national security, public safety, or border security. The Guidelines remain in effect.

An application under this process does not prevent CBP or ICE from taking enforcement action against an individual when otherwise appropriate under applicable law and policy. CBP and ICE reserve the discretion to place these noncitizens in removal proceedings.

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 us to carefully evaluate your background.

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.

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.

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.

For more information about this executive action on immigration, please check out our helpful links below.

Contact Us. If you would like to schedule a consultation to discuss your eligibility, please text 619-569-1768 or call us at 619-819-9204.

• USCIS Parole Webpage: Process to Promote the Unity and Stability of Families
• Fact Sheet: DHS Announces New Process to Promote the Unity and Stability of Families
• July Visa Bulletin
• Adjustment of Status Filing Dates from Visa Bulletin
• USCIS Processing Times
• VisaLawyerBlog
• ImmigrationLawyerBlogFACT SHEET: President Biden Announces New Actions to Keep Families Together
• ImmigrationU Membership
• Success stories
• Youtube channel