Biden Plan to Grant Deportation Relief for Immigrant Spouses of U.S. Citizens

 

In a significant move, the Biden administration announced a plan to grant work authorization and deportation relief to undocumented spouses of U.S. citizens. According to DHS, the program will eventually provide a path for applicants to apply for permanent resident status (green card). This policy shift could impact hundreds of thousands of families currently living under the shadow of immigration uncertainty.

1.1 Million Undocumented Immigrants Have U.S. Citizen Spouses

According to Fwd.us, an immigration advocacy group, approximately 1.1 million undocumented immigrants are married to U.S. citizens. These individuals currently face significant legal hurdles due to their undocumented status, which affects their ability to work legally and exposes them to the risk of deportation. Under existing immigration law, many of these spouses are ineligible to apply for a green card, leaving them in a precarious legal situation despite their marital ties to American citizens. Typically, these individuals have entered the U.S. illegally without inspection by an immigration officer, which makes them ineligible to be legalized even though they are married to American citizens.

Program will Benefit Spouses and Step Children

The Biden Administration plans to grant these undocumented spouses "parole in place." Parole is an executive authority that would allow them to stay in the country temporarily without fear of deportation and enable them to obtain employment authoriziation. This initiative seeks to stabilize the lives of many mixed-status families, providing them with economic opportunities and reducing the constant fear of family separation due to deportation. This program will also confer benefits to step-children of U.S. citizens.  According to NPR, an estimated 500,000 undocumented spouses and 50,000 non-citizen stepchildren would qualify for this relief. 

Program Requirements

Not all undocumented spouses of U.S. citizens would qualify for this Biden plan.  To qualify for parole in place status, the applicant must have been present in the United States for at least 10 years as of June 17, 2024.  It is unclear if physical presense must be continuous at this point. Furthermore, the applicant must have been married to a U.S. citizen on or before June 17, 2024.  Individuals who pose a threat to national security or public safety will not be eligible for this process.  It should also be noted that an applicant who entered the United States legally may apply for permanent resident status through adjustment of status.  These applicants do not need to apply under Biden's parole program. 

Discretionary Adjudciation

According to DHS, this is a discretionary application and will be adjuducated on a case-by-case basis. 

DHS will take into consideration the applicant's previous immigration history, criminal history, the results of background checks and national security, and any other relevant information available to or requested by USCIS. Fraudulent applications will also be screened out of the process.  Individuals with a criminal record and those with serious immigration violations will likely not be eligible for the program. 

Program Rationale and Challenges

The rationale behind this potential policy shift is multifaceted. Advocates argue that providing legal status and work authorization to the spouses of U.S. citizens is not only a humane approach but also economically beneficial. Allowing these individuals to work legally can contribute to the economy and reduce the exploitation often associated with undocumented labor.

Moreover, supporters emphasize the importance of family unity. Keeping families together is a cornerstone of U.S. immigration policy, and providing relief to these spouses aligns with this principle. It also addresses the emotional and psychological toll that the threat of deportation imposes on families.

Challenges and Next Steps

 Implementation of the program is expected to start in late summer, after a formal publication of the details in the Federal Register.  Implementing such a program would not be without challenges.  Opponents of the program will argue such executive actions overstep legal boundaries, as immigration relief should be addressed through legislative channels. The executive branch's authority to grant broad immigration relief without congressional approval may face challenges in court.  Additionally, there would be logistical hurdles in processing and verifying the eligibility of a large number of applicants.  

Conclusion

The Biden administration's plan to grant work authorization and parole status to undocumented spouses and step-children of U.S. citizens represents a significant potential shift in immigration policy. While it promises to alleviate the hardships faced by many families, it also underscores the ongoing challenges of addressing immigration reform in a deeply divided political landscape.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

Biden's Immigration Plan has been Introduced by Congress

The U.S. Citizenship Act of 2021, a major policy initiative of President Biden, has been formally introduced in both the Senate and the House last week.  The full text of the proposal is 353 pages long.  It is a comprehensive plan that touches on all major aspects of the immigration system.  

The part about providing a path to citizenship for the undocumented gets most of the headline attention.  A good portion of the proposal is actually devoted to reform legal immigration. The following is a summary:  

• Recaptures from previous years unused immigrant visa numbers in both family-based and employment-based categories for current use.
• The number of immigrant visas allocated to immediate relatives from the previous year is no longer deducted from the annual visa quota.
• The annual cap of employment-based immigrant visas is increased from 140,000 to 170,000.
• Reclassify spouses and minor children of lawful permanent residents as immediate relatives (thus making them no longer subject to the annual visa cap).
• Spouses and children will no longer be counted against employment-based numerical limits in the employment-based visa categories (thus indirectly increasing the number of employment-based immigrant visas by a few multiples) . 
• The current per-county limit of immigrant visa allocation will be raised from 7% to 20%.
• Cancel the 3-year and 10-year bars for individuals who have been unlawfully present in the U.S.
• Death of the petitioner or a principal applicant will no longer terminate the related immigration petition.
• Fiancés of U.S. citizens and their children will be allowed to apply for adjustment of status without going through the K-1 visa or immigrant visa.   K-2 children will no longer age out.
• An immigrant visa applicant will retain the earliest priority date of any petition, regardless of the visa categories. Hence, an employment-based applicant may retain the priority date of a previously-filed family visa petition.  
• Graduates of accredited U.S. PhD programs in STEM fields will no longer be subject to the employment-based immigrant visa limits, making visa numbers immediately available to them. 
• Similarly, applicants and their dependents with approved I-140 petitions with priority dates older than 10 years will no longer be subject to the employment-based immigrant visa limits, thus making green cards immediately available to them.
• AC-21 one-year extension will be extended to other visa categories (F-1, O-1, L-1) once their labor application or I-140 petition has been pending for 365 days or longer.
• An additional 30,000 employment-based immigrant visa numbers will be allocated to the EB-3 Other Worker category (unskilled workers with less than 2 years training, education, or experience). 
• DHS is allowed to allocate H-1B visas based on the level of wages offered by employers. (Similar to Trump's wage ranking rule).
• The F-1 visa will be converted to be a “dual-intent” nonimmigrant visa category (and hence F-1 students will no longer be required to prove intention to return home.)
• Allow H-1B workers to extend status beyond the normal six-year limit until their adjustment of status (I-485) has been processed in the EB-1, EB-2, or EB-3 category.  H-4 children will not age out if H-4 status was initially granted before the age of 18.  A child's age in EB categories is frozen on the date when the labor application or I-140 petition was filed. 

It is important not to rely on the details of this initial proposal yet.  The Senate and the House must first agree on a final version before it can be sent to the President for signature.  Due to the controversial nature of immigration issues, extensive debates and compromises are expected before a final version can be agreed on. 

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule legal consultation.) 

Biden Proposes US Citizenship Act of 2021

President Biden has promptly proposed a sizeable bill that would overhaul current immigration policy. The bill, US Citizenship Act of 2021, focuses on improving protection and assistance for families and vulnerable migrants such as asylum seekers.  It also emphasizes family reunion, attracts foreign skilled workers, and protects children from aging out.  Below is an overview in outline format.  (Note: This is only a proposal and has not been passed into law. )

Path to Citizenship

1) Undocumented immigrants can apply for temporary status and then for their green card after 5 years if they pass background checks and pay taxes.

2) Temporary Protected Status (TPS) individuals, DACA Dreamers, and certain farmworkers physically present in the U.S. on or before January 1, 2021 will gain permanent residence immediately.

•     They can then apply for citizenship after 3 years.
•    The physical presence requirement can be waived for those deported on or after January 20, 2017 and who were physically present for at least three years before removal.

Family-Based Immigration

1) Per-country visa caps will be increased and unused visas recaptured.

2) Family members with approved petitions can enter and wait in the U.S. for a visa number to become available. 

3) Gets rid of the 3 and 10-year bars and similar rules. 

4) Explicitly includes permanent partnerships and LGBTQ+ families. 

5) Protects orphans, widows, children, and Filipino veterans who fought alongside the United States in World War II.

Employment-Based Visas

1) Eliminates per-country visa caps and recaptures unused visas.

2) Secures Employment Authorization Document (EAD) for H-4 dependents.

3) Facilitates foreign graduates with advanced STEM degrees to stay in the United States.

4) Improves access to green cards for workers in lower-wage sectors.

5) Protects children from "aging-out" for immigration benefits.

6) Authorizes DHS to adjust green cards issuance based on macroeconomic conditions, and incentivizes higher wages for non-immigrant, high-skilled visas.

Foreign Worker Protections

1) Grants victims of labor violations easier access to U visas.

2) Protects workers from deportation as a form of workplace retaliation.

3) Increases penalties for employers violating labor laws. 

Diversity Visas (Visa Lottery)

1) Increases diversity visa numbers from 55,000 to 80,000.

Border Protection and Accountability

1) Increases accountability of Customs and Borders Patrol (CBP) officers conduct.

2) Directs Government Accountability Office (GAO) to investigate DHS' authority to bypass environmental and state law when building walls.

3) Increases funding for officer training and standardizing proper treatment of people in custody.

4) Makes it easier to prosecute criminals in smuggling and trafficking rings that take advantage of migrants.

5) Increases intelligence efforts and sanctions on narcotic traffickers and their associated groups

6) Promotes anti-gang task forces in Central America.

Protections for Asylum Seekers and Others

1) Reduces asylum backlogs through funding.

2) Eliminates one-year deadline to file asylum claims.

3) Increases U visa cap from 10,000 to 30,000. 

4) U, T, VAWA visa applicants and those that assist U.S. troops gain more protection.

5) Gives immigration judges and adjudicators more discretion to review cases and grant relief.

6) Creates processing centers in Central America to help settle displaced people.

7) Funding for government and NGOs programs to help integrate displaced migrants.

This most notable part of this proposal is the opportunity of permanent residence and citizenship that would be available to undocumented, DACA, and TPS migrants. 

Of course, the proposal has to pass through Congress first -- and if it does, the final version will likely be much different. Conservative Congressional members are expected to oppose or block the proposal especially in regards to the "legalization" or "amnesty" provisions. 

Biden Revokes Muslin/African Travel Ban, Orders Consulates to Resume

President Joe Biden has already begun to reverse his predecessor's immigration policies. On the same day of his inauguration, Biden issued a Proclamation revoking Executive Order 13780 and Proclamations 9645, 9723, and 9983. These orders essentially banned entry of most Muslim country nationals.

There were exceptions to these bans which required a waiver, but there was no formal waiver application and consulates were mostly closed, which resulted in a large backlog. The Proclamation addresses these points first by ordering embassies and consulates to resume processing visas to the extent that COVID allows them. 

Biden also ordered plans to address applications that were affected by the bans, delivered within 45 days. It is to include expediting visa processing for those with pending waivers and to reconsider applications that were denied due to Trump's Proclamations. Plans also must ensure that the denied visas do not affect re-application. 

Further sections of the Proclamation orders a report within 120 days on improvements for current screening procedures and foreign exchange of information for vetting, with a focus on efficacy and diplomacy. 

Overall, immigration policy is taking a 180 degree turn with the new presidency. Trump's discriminatory travel bans have been revoked and there are policies in the making aimed at mitigating their effects. Anyone that was affected by the travel ban should contact their embassy on what to do next.