On June 17, 2024, the Department of Homeland Security (DHS) announced a new process that is in-line with the Biden-Harris Administration’s goal and recent announcement for keeping families united.
It has been almost a month since this announcement, and yet, there are many things that are still unclear. On July 17, 2024, President Biden announced that the anticipated date they will allow individuals to apply will be August 19, 2024. U.S. Citizenship and immigration services (“USCIS”) announced the same that that they expect to be able to accept applications on August 19.
With only a month before this possible start date, there is still a lot of information we do not know about the program. However, we have some information available, allowing for early screenings on individuals who could be eligible to apply, when and if the program begins to accept applications.
Here is what we currently know:
What is this process?
This process will allegedly function like a “parole in place.” This will allow any non-citizen, who meets the rest of the eligibility criteria, to apply for “parole.” This will ultimately act as a “cure” for the individual’s unlawful entry and accrued unlawful presence without requiring the individual to leave the United States.
This parole will allow the individual to adjust status in the United States. As it currently stands, if one accrues more than a year of unlawful presence, they are subjected to a ten-year bar upon departure from the United States. This is often triggered when an individual leaves for consular processing. Individuals subjected to this bar need to file an I-601, Waiver for Inadmissibility, which currently has a processing time of approximately 45 months.
However, the parole will create an “inspection and admission” for the individual, allowing them to pursue adjustment of status within the United States. It appears that the goal would be to cut down on the backlog of waiver applications that are still processing, as well as preserving family unity.
Who is eligible for this new process?
There are a few requirements. To determine if you may qualify for this process, you should answer the following questions:
1) Did you enter without inspection or parole?
The new process only applies to individuals who entered without inspection (EWI). Those who entered with inspection or on parole should consult with an attorney to discuss their options.
In other words, if you entered the United States with a visa, this program would not apply to you. If, however, you entered “illegally” or “undocumented,” you may be eligible.
2) Have you been present in the United States for ten or more years?
One may qualify for this process if they been present in the United States for ten or more years. So long as you were present (and can prove) you were in the United States no later than June 17, 2014, you may be eligible.
3) Were you married to a United States Citizen as of June 17, 2024?
The new process only applies to noncitizens who are in a valid (not fraudulent marriage) to a US citizen. The marriage must have happened on or before June 17, 2024. If you marry a US citizen after June 17, 2024, you are not eligible.
Noncitizen spouses of lawful permanent residents (LPRs) are not eligible for this program. There is no clarity or guidance on spouses of LPRs who naturalize after June 17, 2024. It is highly possible that even if an LPR naturalizes after June 17, 2024, their spouse would not be eligible for this program, as they would not have met the “married to a U.S. citizen as of June 17, 2024.”
The noncitizen must also demonstrate that they have no disqualifying criminal history or that they would be a threat to national security or public safety. This language is very similar to the language that is used when evaluating eligibility for Deferred Action for Childhood Arrivals (DACA). Multiple DUIs/OWIs, a violent offense, or certain drug related convictions could be a disqualifying factor.
Individuals in removal proceedings are not disqualified from applying. USCIS will use their discretion to grant or deny potential applicants based on a variety of factors. However, if you are in removal proceedings because you are an enforcement priority, you cannot apply for parole. An “enforcement priority” is defined as an individual who is: (1) a threat to national security; (2) a threat to public safety; or (3) a threat to border security.
What about noncitizen stepchildren?
Noncitizen children may benefit from this new process. A noncitizen child could request parole if they are (1) present in the United States without admission or parole on or before June 17, 2024; and (2) have a valid stepchild relationship to a United States Citizen as of June 17, 2024. Children who may benefit do not need to show the ten years of presence. Only the noncitizen parent will need to show the presence.
This would mean the child would need to be under twenty-one (21) years of age and unmarried. The marriage to the noncitizen child’s parent needed to occur before the child reached the age of eighteen (18), and the stepchild-stepparent relationship is valid as of June 17, 2024.
Unanswered Questions
Right now, there is still a lot that we don’t know for certain.
We still do not know how much it will cost to apply. The initial announcement states that there will be a fee, but no further information about how much that fee is has been released. We do not know what form will be used or if they will create a new form specifically for this process.
We also do not know how long it will take the government to process these applications. If the government’s estimate is right that nearly 550,000 noncitizen spouses and stepchildren can benefit from this process, it is possible that it will take them time to process all potential applications, especially if all eligible noncitizens apply at once.
One question that has been raised is this program’s effect on the permanent bar, which is defined in INA 212(a)(9)(C)(i)(I). As it stands, it does not look like this program would be available to individuals with multiple unlawful entries. Individuals who have multiple unlawful entries on or after April 1, 1997, are not eligible for this program, much like they are ineligible Military Parole in Place.
It is possible with the upcoming Federal Register Notice that will be published later this year that we will have an answer to many of the above questions.
Pre-Cautions to Take
It is very important that with anything, individuals are aware of risks that could be associated with this program.
First, it is important to note that you will, like with any immigration application, be giving your information to the government. USCIS could, upon a denial of an application, use this information and place you in removal proceedings. This could be done at USCIS’ discretion, especially if you are an enforcement priority.
At the end of the day, the final decision on who qualifies will be made by USCIS. While you may meet many of the requirements outlined above, USCIS could deny you based on discretion alone. It is important to know just because you might be eligible does not guarantee a positive outcome for your application.
The Future of the Process
Even though we have an anticipated start date, there is no guarantee the program will begin on August 19, 2024.
Guidelines and requirements are going to be published in the Federal Register, which may or may not be published before August 19. In the event the Federal Register does not publish the guidelines before August 19, it is possible there will be a delay in filing applications.
Like many things in the current political climate, this program is subjected to scrutiny and opposition. At this time, it is unclear what, if any, legal actions or lawsuits might occur before the full implementation of the process. However, it is important to understand how a lawsuit could impact the program.
In the event of a lawsuit, it is possible an injunction could be issued, stopping the program or even preventing the program from beginning on the projected start date of August 19. It is possible that the program could be delayed or may not begin altogether. It is important to understand if you are interested in pursuing this process that there may not be a process to pursue.
With an impending election, a potential change in government could change and challenge this new process. Only time will tell what will happen with this program moving forward.
If you believe you may qualify, it is important to schedule a consultation with an attorney to discuss this program and your eligibility. An attorney will be able to screen for other inadmissibilities. An attorney can also discuss how this process may impact you and your own individual case. Every client and every case are different; what may be relevant to your friend, cousin, or neighbor may not be the best option for you.