By Attorney Amanda Mitchell

On June 18, 2024, the Biden Administration unveiled two new immigration policies that promise to reshape the landscape for hundreds of thousands of undocumented individuals in the U.S. These policies aim to address long-standing issues in the immigration system, offering new pathways and stability for mixed-status families and creating opportunities for talented, U.S.-educated DREAMers to join the American workforce.

Parole in Place: A Lifeline for Undocumented Spouses and Their Children

The expansion of Parole in Place (“PIP') marks a notable policy shift by the Biden Administration concerning undocumented spouses and stepchildren of U.S. citizens. This policy directly tackles a significant hurdle in the path to obtaining permanent residency from within the United States. Under existing laws, many undocumented spouses who entered the country without inspection or parole face a challenging dilemma: they must either continue to live undocumented, constantly under the threat of deportation and unable to fully integrate into society, or they can opt to apply for an I-601A unlawful presence waiver, exit the country, and attempt to complete the immigration process at a U.S. consulate abroad. Though this ostensibly offers a route to legal status, it also entails risk. Departing the U.S. often results in triggering an automatic bar to reentry of 3 or 10 years, depending on the length of unlawful presence accrued. Moreover, the I-601A waiver process is currently experiencing substantial delays, with average processing times extending to 3.5 years. Even after enduring this lengthy wait, approval is not guaranteed, nor is the reassurance of an immigrant visa being approved that would allow for readmission to the U.S. Consequently, families confront the prospect of prolonged or indefinite separation. Thus, hundreds of thousands of individuals have found themselves in a state of uncertainty, unable to adjust their status despite being otherwise eligible for sponsorship through their U.S. citizen spouses.

The new PIP policy seeks to address this dilemma by fundamentally altering the handling of these cases. It introduces several key provisions, including removing the requirement for eligible individuals to obtain I-601A waivers. It also enables eligible individuals to be deemed "inspected and paroled" as recognized under federal law and allows them to apply to adjust their status without the necessity of departing the U.S.

Who is Eligible to apply for PIP?

1. Applicants must meet specific criteria to qualify, including the following:
2. Be present in the U.S. without admission or parole and have maintained continuous presence for at least 10 years as of June 17, 2024 (since June 17, 2014);
3. Have a legally valid marriage to a U.S. citizen as of June 17, 2024;
4. Have no disqualifying criminal history and no threat to national security or public safety; and
5. Warrant favorable exercise of discretion by USCIS.

The USCIS will assess eligibility for favorable discretion by considering factors such as prior immigration and criminal history, along with the results of background checks and national security vetting. Individuals approved for PIP will have a three-year window to apply to adjust their status.

Why is this significant?

The Department of Homeland Security estimates that approximately 500,000 undocumented spouses and 50,000 children stand to benefit from the new PIP policy. Unlike some other policies, there is currently no cap on the number of PIP approvals to be issued with each case evaluated on its own merits. If successful, this program could become the largest government program to support undocumented individuals since the implementation of DACA 12 years ago.

While a notice has not yet been published in the Federal Register, applicants are anticipated to need to submit a formal application to USCIS, including a filing fee and required supporting documentation. The specific form for this process has also yet to be confirmed and released.

Opening Doors for DREAMers: A New Route for Employment Visas

The Biden Administration has introduced a second new policy supporting the issuance of employment-based visas for certain DREAMers, including DACA recipients, who have graduated from accredited U.S. institutions of higher education and possess a valid job offer related to their degree.

DACA recipients seeking employment authorization face significant obstacles under current regulations due to being unable to change their status from within the U.S. At present, they must depart the U.S., attend an in-person interview at a U.S. consulate abroad, and then seek reentry using the nonimmigrant visa. However, those with more than 180 days of unlawful presence risk triggering a 3 or 10-year bar to reentry upon departure. Although nonimmigrant waivers exist, applying too soon after departure without substantial ties to a foreign country often leads to denial, thereby preventing the issuance of a visa and subsequent reentry to the U.S.

The current process does not favor undocumented individuals applying for nonimmigrant visas, placing additional barriers on their path to legal employment in the U.S. The recent announcement by the Biden Administration signals a commitment to streamline this process, aiming to leverage the skills and education of DACA recipients and similarly situated individuals for the benefit of the U.S. economy and labor market. While specific details were not provided, the announcement sets the stage for potential reforms and represents a meaningful change in how the U.S. approaches the retention of highly skilled and educated graduates who have completed their education in the U.S.

The success of these programs will depend on their execution and any potential legal challenges they may face. As we await further details and the official publication in the Federal Register, we encourage those who may be affected by these policies to stay informed and seek professional guidance. These changes could have life-changing implications for many individuals and families. We will continue to monitor these developments closely and provide updates as more information becomes available.