New immigration initiatives may help undocumented spouses, “Dreamers”
The White House and U.S. Department of Homeland Security recently announced two new immigration initiatives.
One provides a way for undocumented spouses of U.S. citizens and their children to obtain permanent resident status without having to leave the United States.
The other provides a way for undocumented non-citizens, including recipients of Deferred Action for Childhood Arrivals and Dreamers with college degrees from accredited U.S. institutions of higher education, to more quickly obtain work visas while abroad.
Some details of these initiatives are discussed below, but the formal notice (at least as to the first initiative) is not expected to be published in the Federal Register until later this summer.
What we know now
Undocumented spouses
According to the Biden Administration, the initiative for undocumented spouses and children of U.S. citizens could benefit roughly 500,000 spouses and 50,000 children.
The program will be available on a discretionary basis to individuals who (1) are undocumented, (2) not “overstays” who entered the United States without admission or parole as of June 17, 2024, (3) are legally married to a U.S. citizen, (4) have been continuously present in the United States for at least 10 years, (5) have no disqualifying criminal history, and (6) do not pose any threat to national security or public safety.
Because these individuals have been in the United States without documentation for more than a year, they would be barred from re-entry into the United States for 10 years unless they obtained a waiver at a U.S. Embassy or Consulate abroad. The waiver requires proof of extreme hardship to the U.S. citizen spouse.
The proposed initiative would create a “parole in place” option, giving the undocumented spouse three years to apply for adjustment of status in the United States and to become eligible for employment authorization.
This parole in place program would also apply to the undocumented children (and eligible stepchildren) of the spouses who have a qualifying relationship as of June 17, 2024.
America First Legal, an organization led by several members of the Trump Administration, has announced that it intends to file a lawsuit challenging the proposed program.
Expedited waivers for DACA recipients “and other Dreamers”
The second initiative proposes that undocumented non-citizens, including DACA recipients “and other Dreamers,” who are U.S. college graduates and have a job offer related to their field of study, be eligible for expedited Section 212(d)(3) waivers. That would allow their return to the United States on temporary (non-immigrant) employment-based visas. DACA recipients who leave the United States are barred from re-entry absent a waiver; however, the standard for DACA recipients to qualify for waivers is lower than the standard that applies to undocumented spouses.
The State Department already has issued a guidance document and says that an updated guidance for consular officers will be issued in 30 days. Already, the State Department has said in the guidance that it “will encourage consular officers to consider recommending expedited review of waiver requests in conjunction with certain nonimmigrant visa applications overseas, consistent with existing Department regulations and guidance.”
To date, there do not appear to be any threats of litigation challenging this second initiative.
Conclusion
Constangy will advise as soon as further details about these two initiatives become available.
