New Immigration Law for Married Couples: New DHS Immigration Policy Explained

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New Immigration Law for Married Couples

On Tuesday, President Biden unveiled a new immigration law for married couples to provide legal status and a simplified pathway to U.S. residency and citizenship for approximately 500,000 unauthorized immigrants married to American citizens.

The Department of Homeland Security’s “Parole in Place” policy will enable these immigrants to apply for work permits and deportation protections, provided they have resided in the U.S. for at least ten years and meet other specified criteria. This program requires undocumented spouses to submit the necessary paperwork and pass a criminal background check and does not extend to future migrants. The president announced that the new immigration law for married couples will take effect “later this summer.”

“Today, I’m announcing a common-sense solution to streamline the process for obtaining legal status for immigrants married to American citizens who have lived here for a long time,” President Biden stated from the White House. “For those spouses and their children who have lived in America for a decade or more but are undocumented, this action will allow them to file the paperwork for legal status in the United States.”

Administration officials estimate that around 500,000 unauthorized immigrants married to U.S. citizens will be eligible for the Parole in Place program. To qualify, applicants must have been legally married to their American citizen spouse by June 17. Those considered a threat to national security or public safety will be excluded from the program.

According to the Department of Homeland Security, the spouses who stand to benefit from this initiative have lived in the country for an average of 23 years.

President Biden’s announcement coincided with the 12th anniversary of the Deferred Action for Childhood Arrivals (DACA) program. Established by President Barack Obama, DACA provided deportation protections for hundreds of thousands of minors brought to the U.S. as children, known as “Dreamers.” However, a federal judge in Texas ruled last year that DACA is unlawful, preventing new applications from being accepted.

Biden’s new program aims to create a pathway to permanent residency or a green card, and eventually U.S. citizenship for many beneficiaries. If the policy is upheld in court, it would represent the largest government initiative to protect undocumented migrants since DACA.

Typically, an immigrant married to a U.S. citizen is eligible for a green card. However, current federal law requires those who entered the U.S. illegally to leave the country and re-enter legally to obtain a green card. Leaving the U.S. after living illegally for certain periods can trigger a 10-year ban, deterring many mixed-status families from pursuing this process.

The Biden administration’s policy would allow eligible immigrants to secure a green card without leaving the U.S. After residing in the U.S. as a green card holder for five years, immigrants can apply for American citizenship.

In his remarks, the president criticized his predecessor and 2024 opponent, asserting that the U.S. can simultaneously secure its borders and provide pathways to citizenship.

DHS Fact Sheet on the New Immigration Law for Married Couples

The Department of Homeland Security (DHS) has announced measures to enhance family unity within the immigration process, in line with the Biden-Harris Administration’s commitment to keeping families together. While these actions leverage existing authorities to support family unity, comprehensive immigration reform requires Congressional action.

Noncitizens married to U.S. citizens can apply for lawful permanent residence through their marriage. However, many must leave the United States and wait abroad for processing, leading to prolonged and often indefinite separation from their U.S. citizen family members, causing significant hardship and uncertainty.

To address this issue, DHS will introduce a new process to evaluate, on a case-by-case basis, requests from certain noncitizen spouses of U.S. citizens. To qualify, these individuals must have lived in the United States for 10 years or more, pose no threat to public safety or national security, be eligible for status adjustment, and demonstrate a favorable exercise of discretion. If eligible, these noncitizens can apply for lawful permanent residence without leaving the United States.

DHS estimates that about 500,000 noncitizen spouses, who have typically lived in the U.S. for an average of 23 years, could benefit from this process. Additionally, approximately 50,000 children of these spouses will also be eligible. Noncitizens who pose a threat to national security or public safety will be excluded, and if such threats are identified, DHS will detain, remove, or refer these individuals to other federal agencies for further action.

Today’s actions build on significant efforts by the Biden-Harris Administration to strengthen family unity. These efforts include implementing family reunification parole processes for nationals of Colombia, El Salvador, Guatemala, Honduras, and Ecuador; updating the Cuban and Haitian family reunification parole processes; leading the Family Reunification Task Force, which has reunified nearly 800 children with their families; and establishing country-specific parole processes for certain nationals of Cuba, Haiti, Nicaragua, and Venezuela (CHNV) who have U.S.-based supporters.

Eligibility and Process for the New Immigration Law for Married Couples

To be considered on a case-by-case basis for the New Immigration Law for Married Couples, an individual 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;
  • Have a legally valid marriage to a U.S. citizen as of June 17, 2024.

Additionally, individuals must have no disqualifying criminal history, must not pose a threat to national security or public safety, and should otherwise merit a favorable exercise of discretion.

Noncitizen children of eligible applicants may also be considered for parole under this process if they are physically present in the United States without admission or parole and have a qualifying stepchild relationship with a U.S. citizen as of June 17, 2024.

To be considered for parole, individuals must file a form with USCIS, provide supporting documentation to demonstrate they meet the requirements, and pay a fee. Further information about eligibility and the application process, including a notice in the Federal Register, will be published soon. USCIS will reject any filings or individual requests received before the application period begins later this summer.

Upon receipt of a properly filed parole-in-place request, USCIS will evaluate, on a case-by-case basis, whether a grant of parole is warranted and whether the applicant merits a favorable exercise of discretion. This evaluation will consider 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 or requested by USCIS. Robust processes to identify and address potential fraud will be applied to ensure the integrity of this program.

Impact and Implications

Progressive lawmakers and immigrant advocacy groups have lauded the policy as a significant advancement that could invigorate Latino voters ahead of the upcoming elections. However, the plan is likely to encounter legal challenges. The Biden administration has previously faced lawsuits over its use of parole authority, and there is a history of judicial resistance; notably, in 2016, a deadlocked Supreme Court blocked a similar initiative from the Obama era.

Despite these potential legal obstacles, the Biden administration has frequently utilized immigration parole authority, including for resettling refugees from Afghanistan, Haiti, and Ukraine. The new plan intends to use the same authority to relieve those already residing in the U.S.

Historical Background

The concept of parole in place is not entirely new. Since the Bush administration, a smaller-scale version of this program has existed for immediate relatives of U.S. military members, a policy affirmed by Congress in 2020. The proposed expansion would be the most extensive relief for undocumented immigrants since the 1986 amnesty law that legalized 2.7 million people.

Next Steps and Future Developments

The Department of Homeland Security is anticipated to release an official notice detailing the application process, additional guidelines, requirements, and the implementation timeline.

The notice will also specify the necessary forms to file, the filing fees, required documentation, and supporting evidence needed for approval.

The application process is expected to open later this summer.

Supporting Lawyers and Law Firms

The Department of Homeland Security’s new measures to promote family unity by allowing certain noncitizen spouses and their children to apply for lawful permanent residence without leaving the United States presents significant opportunities and challenges for legal professionals. As law firms navigate the complexities of this policy and assist their clients in preparing the necessary documentation and applications, the need for meticulous legal research, drafting, and case management becomes paramount.

Legal Consulting Pro’s comprehensive legal process outsourcing services, including legal research, legal drafting, deposition summarization, and document review, are designed to support lawyers and law firms in managing these intricate legal processes efficiently. Our expertise ensures that every detail is meticulously handled, enabling legal professionals to provide the highest quality service to their clients in light of these new immigration policies.

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