President Biden recently announced a pair of new immigration initiatives, including a new process to significantly ease the burden of obtaining lawful permanent resident status (i.e. a “green card”) for certain spouses and stepchildren of U.S. citizens by allowing these noncitizens to apply from within the United States instead of before a U.S. consulate abroad.

The second initiative is aimed at improving the visa application process for beneficiaries of the Deferred Action for Childhood Arrivals (“DACA”) program, referring to the 2012 Executive Order of former President Obama that provided deportation relief and work authorization to approximately 530,000 non-citizens who were brought to the United States as children.

This post will explore what we know so far about these two programs.

The “Keeping American Families Together” Initiative

The first of the two programs is designed to make it easier for spouses and stepchildren of U.S. citizens who entered the country without inspection to obtain green cards from within the United States, instead of having to leave the country to apply before a U.S. consulate abroad.

Under U.S. immigration law, spouses and stepchildren of U.S. citizens are not automatically entitled to apply for a green card from within the United States, a process known as “adjustment of status.” To qualify for adjustment status, the applicant must show that he or she lawfully entered the country, i.e. that he or she was inspected by an immigration officer during the entry process.

Without evidence of a lawful entry, a green card applicant must instead depart the United States to submit his or her application before a U.S. consulate or embassy abroad. However, this process can be onerous, and in some cases disastrous, for several reasons:

  • First, applying abroad is challenging because the applicant must first receive pre-approval of one or more waiver applications from the Department of Homeland Security (DHS), and preparing these requests typically involves gathering voluminous documentation proving the applicant’s U.S. citizen relative cannot be separated from them or cannot relocate with them abroad.
  • Second, applying abroad is time-consuming because DHS is currently taking almost four years to review the waiver applications mentioned above. This means the total process can often take five to six years, start to finish.
  • Third, applying outside the country carries the risk that the applicant could be stranded abroad. These instances are rare, but occasionally something will be discovered during the consular interview that results in either a delay in the applicant’s case being approved or, worse, in the applicant being found permanently ineligible to return.

Given the difficulties of applying for a green card abroad, nearly all applicants greatly prefer applying from within the United States if at all possible. For noncitizens who entered the country without inspection, this was simply not possible because they lack the evidence of a lawful entry necessary to do so.

Parole-in-Place Expansion

Under this new process, certain spouses and stepchildren of U.S. citizens may request evidence of a lawful entry even though they did not enter the country lawfully, a benefit known as “parole-in-place,” or “PIP.” PIP refers to the legal mechanism by which the government provides a noncitizen already present in the United States with proof of a lawful entry, despite not having lawfully entered the country, thus permitting the beneficiary to adjust status from within the country rather than having to face the uncertainty of submitting their green card applications abroad.

To qualify for PIP under this new process, a noncitizen applicant must meet the following requirements:

  • First, the applicant spouse or stepchild must be present in the United States without having been inspected at the border;
  • Second, the applicant spouse or stepchild must have resided in the United States for at least 10 years as of June 17, 2024.
  • Third, the applicant spouse (or the parent of the stepchild) must have been married to a U.S. citizen as of June 17, 2024.

In addition, the applicant must not have any “disqualifying” criminal convictions, must not pose a “threat to nationality security or public safety,” and must warrant a “favorable exercise of discretion” by the Department of Homeland Security (DHS).

PIP grants issued under the new program will be valid for three years. During this period, approved applicants will be eligible to receive temporary work authorization, thus creating an additional add-on benefit while they go through the green card application process.

As to what will be required, a Q&A posted on the DHS website lists the following as required evidence:

  • Documentation to establish that the noncitizen has been continuously present in the United States for at least 10 years as of June 17, 2024;
  • Evidence of a legally valid marriage to a U.S. citizen as of June 17, 2024; and
  • Evidence of additional favorable discretionary factors that the applicant would like USCIS to consider.

In terms of timing, DHS has not provided a definitive timetable as to when it will begin accepting PIP applications under this new process. All we know presently is that details will be released “soon” according to the DHS website.

In fact, there is still a lot we don’t know about eligibility under this new program. For example, DHS has not released full details on how criminal convictions will be evaluated in conjunction with PIP requests. According to DHS’s Q&A, applicants will be ineligible for PIP if they have a criminal history which renders them a threat to either national security (terrorist, espionage, or related crimes) or “public safety,” as that term was defined in the memorandum Guidelines for the Enforcement of Civil Immigration Law issued by Secretary of Homeland Security Alejandro Mayorkas in September 2021. However, given the rather broad list of factors which may be considered, how this will be applied in practice is an important open question.

While many questions remain, what is certain is that the Biden Administration’s new PIP initiative offers the possibility of making the process for obtaining permanent residence substantially quicker for millions of noncitizens.

Easing the Visa Process for U.S. College Graduates, Including Dreamers

The second immigration initiative announced last week involves facilitating the process for obtaining temporary work visas for graduates of U.S. colleges and universities with an offer of employment. While it appears that this new process will be open to all visa applicants, the announcement specifically references DACA recipients as its intended beneficiaries.

Substantially less information has been released about this initiative, but a Q&A posted on the State Department’s website suggests it will involve expediting the visa application process for DACA recipients who are applying for a temporary work visa before a U.S. consulate abroad.

By way of background, while receiving DACA protections status has been a critical immigration benefit for thousands of noncitizens living in the United States, it does not provide a path to permanent residency, nor does it permit recipients to change to another visa classification from within the United States. In the latter case, many people who have received DACA protections would quality for a temporary work visa, but obtaining such a visa would require them to apply for one before a U.S. consulate or embassy abroad. As such, without an obvious pathway to normalize their immigration statuses, receiving DACA protections often leaves its beneficiaries authorized to work, but in a permanent state of immigration limbo.

One common complication for DACA recipients to apply for a work visa outside the United States is that they will need to ask DHS for a waiver, often stemming from unlawful periods spent in the United States as an adult before receiving DACA benefits. Furthermore, unlike the waiver process for green card applicants described above, in which the applicant knows that the waiver has been approved before they depart the country, DACA recipients must request their waivers at their visa appointments, meaning they have to leave the country without knowing if their waiver requests will be approved or how long that process will take.

As a result, even though many DACA recipients may now qualify for a temporary work visa, given the risks involved with requesting a wavier abroad, very few are willing to go through the visa application process, thus leaving them in immigration limbo and unable to change their visa status.

Based on what we know from the State Department’s Q&A, the Biden Administration aims to minimize the uncertainty involved with DACA recipients applying for temporary work visas abroad by providing “clarifications” on when they will qualify for waivers and how long they will take to be granted.

The State Department indicates additional guidance will be released within 30 days of June 18, 2024.

Harris Beach’s New York Immigration attorneys will continue following these two initiatives and report on new developments. If you have questions about these or related matters, please reach out to attorney Adam W. Moses at (212) 313-5449 and; or the Harris Beach attorney with whom you most frequently work. Our Immigration Practice Group can assist with your immigration needs.

This alert is not a substitute for advice of counsel on specific legal issues.

Harris Beach has offices throughout New York state, including Albany, Buffalo, Ithaca, Long Island, New York City, Rochester, Saratoga Springs, Syracuse and White Plains, as well as Washington D.C., New Haven, Connecticut and Newark, New Jersey.

1 According to that memorandum, whether criminal conduct renders a noncitizen a threat to public safety is determined by a multifactor test which takes into account considerations such as, for example, the gravity of the offense, the nature and degree of harm caused, the sophistication of the criminal offense, etc.