On June 18, 2024, President Biden announced a significant set of executive actions to promote family unity and provide status pathways to certain undocumented spouses of U.S. citizens. The executive actions could initiate a process that will allow certain non-citizen spouses of U.S. citizens to apply for their green cards without leaving the U.S.
Currently, a U.S. citizen can sponsor their non-citizen, foreign-born spouse for permanent residency by filing an I-130 immigration petition for the individual, regardless of their immigration status. Immigrant visas are available in this category without backlogs, unlike many other family-based categories. However, undocumented spouses who didn’t enter the U.S. legally typically don’t qualify under current law to complete the permanent residency process in the U.S. An exception applies for individuals who qualify for adjustment under Section 245(i), but these are presently few.
In these situations, the spouse typically must depart the U.S. to complete the process at a U.S. embassy or consulate abroad, thereby triggering a 10-year penalty to lawful readmission under immigration law unless waived due to hardship to a qualifying relative who is a U.S. citizen spouse or parent, but not a child. This process is lengthy, uncertain, and expensive, and discourages many of these families from pursuing these steps. Consequently, the family unit continues in a precarious immigration situation with an uncertain future.
To provide relief, the Biden administration proposes to use the humanitarian parole authority of the executive branch to place qualifying individuals in a legal “parole,” which would then allow them to apply for adjustment of status. Approximately 500,000 spouses and stepchildren of U.S. citizens in “mixed-status” households could benefit from this change, if implemented.
The availability of this program, also known as Parole in Place, for qualifying non-citizen spouses is formalized through publication in the Federal Register. On Aug. 16, the USCIS published a new form titled I-131F to be used for such applications. The USCIS noted this application can only be filed online through a myUSCIS account and included a guide to the form on its website. The agency reiterated that applications could be filed on or after Aug. 19, 2024, and the corresponding Federal Register notice is being published on Aug. 20, 2024.
The Department of Homeland Security (DHS) has announced the following specific requirements for individuals to qualify:
- Continuously resided in the U.S. for 10 years since June 17, 2014
- Physically present in the U.S. on June 17, 2024
- Legally married to a U.S. citizen as of June 17, 2024
- Entered the U.S. without admission or parole and do not currently hold any lawful immigrant or nonimmigrant status
- Have not been convicted of any disqualifying criminal offense
- Do not pose a threat to national security or public safety
- Merits a favorable exercise of discretion
Substantial evidence in the forms of individual’s documents must be submitted to prove eligibility.
This program would also include non-citizen children of these spouses (i.e., stepchildren).
All requests 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 to or requested by the U.S. Citizenship and Immigration Services.
Employers may stand to benefit from a substantial new group of individuals who will be work authorized and whose statuses could be legalized in the U.S. if this program proceeds.
