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DHS Announces Process to Promote Family Stability
Contributor: Van T. Doan
The Biden-Harris Administration has expressed a commitment to keeping families together through the immigration process. Consistent with this priority, the Department of Homeland Security (DHS) announced today actions that authorities can take to promote family unity. At the same time, the announcement called upon Congress to fix an immigration system it described as “broken.”
Green Cards for Noncitizen Spouses of Citizens
Current U.S. immigration law allows noncitizens who are married to a U.S. citizen to apply for lawful permanent resident status. However, pursuing this opportunity comes at a price to families: in order to apply, the noncitizen spouse must often leave the United States and then wait outside the country for their application to be processed.
This puts families in an unacceptable position. Either they must endure a prolonged and indefinite separation while the noncitizen spouse waits for processing of their application, or they forgo the opportunity to apply for the noncitizen spouse’s green card in order to remain together. Either way, these families live in uncertainty, unable to make plans for a stable future. Hundreds of thousands of families are in this bind.
DHS is establishing a new process to allow certain noncitizen spouses of U.S. citizens to apply for their green cards without the need to leave the country and their families, with all the hardship that involves.
New Application Process for Lawful Permanent Residence
DHS may now consider, on a case-by-case basis, green card applications for certain noncitizen spouses of U.S. citizens. In order to be eligible for the process, applicants must meet certain criteria:
- They must have lived in the United States for 10 years or more;
- They must not pose a threat to public safety or national security;
- They must be otherwise eligible to petition for an adjustment of status; and
- They merit a favorable exercise of discretion.
The approximately 500,000 noncitizen spouses who meet these criteria will no longer have to choose between pursuing a lawful immigration status and being with their families. They will be able to remain in the United States (“parole in place”) while their application is pending. About 50,000 children of these noncitizen spouses will also be eligible for the new process.
According to DHS, the average time these noncitizen spouses have lived in the United States is 23 years. The people who are eligible for this new process did not come to this country with bad intentions. They came with hope for a better future, and have established lives and families and are responsible members of their communities. Their remaining in the country while their application for a green card is pending does not pose a threat to anyone. Noncitizens who do pose a threat to national security or public safety will be detained or removed by DHS, or will be referred to other federal agencies for appropriate action.
Individuals who meet the criteria for parole in place may be granted parole for a one-time period of three years. Recipients may also be eligible for employment authorization for up to three years. If granted parole in place, the recipient can apply for their green card within three years of approval.
What is a “Favorable Exercise of Discretion?”
Just because someone meets the other legal eligibility requirements does not automatically entitle them to an adjustment of status. They must still prove that they merit a favorable exercise of discretion, which is another way of saying that their application deserves favorable consideration. Factors like the hardship to the family if the applicant had to leave the country, the applicant’s strong ties to the community, the length of their residency in the U.S., and their good moral character would suggest that they merit a favorable exercise of discretion.
Having the help of an experienced and licensed immigration attorney can be very important in demonstrating to authorities that you merit a favorable exercise of discretion.
How Can a Noncitizen Be Considered for this New Process?
A noncitizen spouse who wishes to be considered for the new DHS process must be present in the United States without admission or parole; must have been present in the country for at least 10 years as of June 17, 2024, and must have a legally valid marriage to a U.S. citizen as of June 17, 2024. Noncitizen children of requestors may be considered for parole under the new process if they are physically present in the United States without admission or parole and have a qualifying stepchild relationship to a U.S. citizen as of June 17, 2024.
Noncitizen spouses and their children must have no disqualifying criminal history, or otherwise constitute a threat to national security or public safety. Qualifying individuals will need to file a form with USCIS along with a filing fee and documentation which shows that they meet the criteria for the new process.
USCIS will determine, upon receipt of a properly-filed parole in place request, whether eligibility requirements are satisfied and the applicant merits a favorable exercise of discretion. The agency will take into account:
- The requestor’s previous immigration history
- The requestor’s criminal history, if any
- The results of background checks and national security and public safety vetting
- Any other relevant information available to USCIS
Good News for DACA Recipients Also Announced
Along with the announcement of the new process for parole in place came an announcement from DHS that will benefit college-educated DACA recipients and Dreamers who are qualified for nonimmigrant status such as an H-1B specialty occupation visa.
Those individuals will be able to more easily apply for a temporary visa if they have a degree from an accredited U.S. institution of higher education and have an offer of employment from a U.S. employer in a field related to their degree.
Get Help from a Licensed Immigration Attorney
Be aware that although these programs have been announced by DHS, they have not yet begun, and early applications will be rejected. When the programs open, legal help can help you ensure that your application is accurate and complete and that your case is viewed in the best possible light, but beware of notarios and other immigration scams that promise results they cannot deliver (and may cost more than an actual attorney).
To learn more about parole in place and help for DACA recipients, contact our office to schedule a consultation with a licensed immigration attorney.
Categories: Immigration Law
