How does the New Biden Program for Spouses of U.S. citizens affect my case?

How does the New Biden Program for Spouses of U.S. citizens affect my case?

On June 18, 2024, the Biden Administration announced a new program to allow certain undocumented spouses of U.S. citizen to apply for Parole in Place.  To qualify, individuals must have been married to a U.S. citizen as of June 17, 2024, must have resided in the U.S. since June 17, 2014, and must meet any other requirements for the application process. DHS expects to begin accepting applications later this summer. Any person who might benefit from this program should consult with a qualified immigration lawyer. (click here to schedule a consultation). Further details on the scope and requirements for the program will likely be released in the coming weeks. But broadly speaking, we can start to think through how this new program could change the trajectory for qualifying individuals in different circumstances:

How will the New Biden Program Affect My Consular Processing Case?

My I-130 by my U.S. citizen spouse is pending

Those without a lawful entry who were planning on leaving the country to process at a consulate should see if they will qualify for this new program. If approved for Parole in Place, they may be able to adjust status here in the United States without leaving the country.  Depending on individual circumstances, they may be able to do so without having to apply for a waiver of inadmissibility.

My I-130 is Approved and an I-601A Waiver is Pending

Those without a lawful entry who were planning on leaving the country to process at a consulate should see if they will qualify for this new program.  Even if the I-601A has already been filed and is pending with USCIS, it may make sense to pursue Parole in Place at the same time. If approved for Parole in Place, individuals may be able to adjust status here in the United States without leaving the country (and without the need for the I-601A waiver).

My I-601A Waiver was approved and I’m waiting on an appointment at the consulate

Those without a lawful entry who were planning on leaving the country to process at a consulate should see if they will qualify for this new program.  Even if the I-601A has already been approved, there can be long waits for immigrant visa appointments at certain consulates.  In addition, depending on case circumstances, there can be some risk that a consular officer could find another ground of inadmissibility, leaving the person stuck outside the U.S.  Therefore, even if the I-601A has already been approved, it may make sense to pursue Parole in Place to try to adjust status without leaving the country. Individuals in this circumstance should be sure to consult with a qualified immigration lawyer to make an informed decision about the best path forward for their particular case.

My I-601A Waiver was approved and I already have an interview set at the consulate

Those without a lawful entry who were planning on leaving the country to process at a consulate should see if they will qualify for this new program.  Even with an approved I-601A waiver, depending on case circumstances, there can be some risk that a consular officer could find another ground of inadmissibility, leaving the person stuck outside the U.S.  Therefore, even if the I-601A has already been approved and an interview has been scheduled, it may make sense to pursue Parole in Place to try to adjust status without leaving the country. Individuals in this circumstance should be sure to consult with a qualified immigration lawyer to make an informed decision about the best path forward for their particular case.

I need other waivers beyond the unlawful presence

How other grounds of inadmissibility, such as inadmissibility for having a conviction for a crime involving moral turpitude or inadmissibility for a misrepresentation for an immigration benefit, will affect eligibility for the new Parole in Place program is not yet clear.  The DHS announcement provides that to be eligible for the program, “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.”  But it does not yet give detail on what criminal history will be deemed “disqualifying” or how the discretionary determinations will be made.  Further information should be forthcoming when details of the program and the application process are released.

How will the New Biden Program Affect my Case in Immigration Court?

There is no indication as of yet that those in removal proceedings will be disqualified from applying from the Parole in Place program.  Because the program is designed to benefit those with U.S. citizen spouses and those with at least ten years living in the United States, it is likely that many people currently in removal proceedings applying for cancellation of removal could qualify.  Those who are approved for Parole in Place through this program may be able to adjust status based on a petition by a U.S. citizen spouse rather than seeking cancellation of removal or other relief from removal.  Individuals in removal proceedings should consult with a qualified immigration lawyer to determine whether this new program should change their deportation defense strategy. Further information should be forthcoming when details of the program and the application process are released.

How will the New Biden Program Affect my Case if I have a Deportation Order?

There is no indication as of yet that those with a removal order will be categorically disqualified from applying from the Parole in Place program.  The DHS announcement provides that to be eligible for the program, “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” and indicates that “previous immigration history” will be taken into account, but we do not yet know if those with removal orders will be blocked from consideration.  Individuals with removal orders should consult with a qualified immigration lawyer before taking any action. Further information should be forthcoming when details of the program and the application process are released.

How will the New Biden Program Affect My U Visa Application Case?

A person with a pending application for a U visa may also qualify for this program if they have a U.S. citizen spouse and the requisite ten years of residence in the United States. Given the extremely long wait times for U visa applications, it may make sense to pursue Parole in Place and seek then seek to adjust status based on a petition by a U.S. citizen spouse rather than simply waiting on a U visa. Individuals with U visa applications pending should consult with a qualified immigration lawyer to determine whether this new program should change their case strategy.

How will the New Biden Program Affect Case if I have the Permanent Bar or other Unwaivable Inadmissibility?

Certain individuals face unwaivable bars blocking them from obtaining lawful permanent resident status.  For example, those subject to the “permanent bar” at section 212(a)(9)(C) of the Immigration and Nationality Act—applicable to those who reentered unlawfully after a deportation and to those who accumulated over a year of unlawful presence, then departed, and then re-entered the U.S. unlawfully—are blocked from getting LPR status on a family-based petition (unless they first spend ten full years outside the U.S. and then obtain permission to reapply).  Likewise, those who are inadmissible for a false claim to U.S. citizenship are blocked from getting LPR status based on a family-based petition.  This program will not eliminate such grounds of inadmissibility.  Available information from DHS is unclear on whether being otherwise eligible for LPR status will be a requirement for the Parole in Place Program. If not, some individuals in these situations may be able to benefit by obtaining Parole in Place protections and work permits even if it will not ultimately result in LPR status. Individuals in such circumstances should consult with a qualified immigration lawyer before taking any action. Further information should be forthcoming when details of the program and the application process are released.

Conclusion

The above discusses some general considerations for a few different situations but is not legal advice for any individual case. Each case is different and we highly recommend consulting with a qualified immigration attorney about the individual circumstances in your case before taking any decision. If you or a loved one would like to discuss how this program could affect your case, click this schedule a consultation link.