Committee Reports

Report in support of new executive actions to keep families together

SUMMARY

The Immigration and Nationality Law Committee issued a report welcoming the recent measures announced by the White House and Department of Homeland Security aimed at keeping certain families together. On June 18, 2024, President Biden announced executive actions providing protections for certain spouses of U.S. citizens who are living in the United States without status. Under the proposed program, certain noncitizen spouses of U.S. citizens would receive temporary protection and work authorization in the United States and have a more streamlined process to lawful permanent residency through their U.S. citizen spouses without the risk of having to be separated from their families for a prolonged and potentially indefinite period of time. The Committee applauds these measures but notes that executive actions such as this one are likely to be challenged in court and can easily be canceled or revoked, creating more uncertainty in an already outdated and convoluted immigration system. We continue to urge broader immigration reform through Congress to create lasting pathways to citizenship for all impacted members of our community.

REPORT

REPORT BY THE IMMIGRATION AND NATIONALITY LAW COMMITTEE IN SUPPORT OF NEW EXECUTIVE ACTIONS TO KEEP FAMILIES TOGETHER

The New York City Bar Association welcomes the recent measures announced by the White House and Department of Homeland Security aimed at keeping certain families together.

On June 18, 2024, President Biden announced executive actions providing protections for certain spouses of U.S. citizens who are living in the United States without status.[1] Under the proposed program, certain undocumented spouses of U.S. citizens would receive temporary protection and work authorization in the United States and have a more streamlined process to lawful permanent residency through their U.S. citizen spouses without the risk of having to be separated from their families for a prolonged and potentially indefinite period of time.

Under current federal law, spouses of U.S. citizens who entered the United States “without inspection” have a much more cumbersome process to lawful permanent residency than those who can show they were “inspected and admitted” or “inspected and paroled” at the border.[2] The only way for them to adjust their status is to leave the country and try to obtain an immigrant visa through consular processing.[3]  To be able to receive an immigrant visa, the individual has to apply for a waiver of the entry bar by proving that their U.S. citizen spouse would suffer “extreme hardship” – a process rife with uncertainty and unreasonably long delays. As a result, over one million individuals present in the United States[4] who would in theory have a pathway to residency have simply not applied for it.

Immigration law already allows the government to grant humanitarian parole to certain individuals who do not have permission to enter the United States.  When this parole is granted to individuals already present in the United States, it is known as “parole in place.”[5] Once a person is given “parole in place,” this means that the person can prove that the person was inspected and paroled into the United States as currently required under federal law. Prior to the June 18 announcement, parole in place was generally available only on a case-by-case basis for “urgent humanitarian reasons or significant public benefit.”[6] Some examples of these reasons include individuals who are: seeking medical treatment, traveling to visit ill family members, looking to attend funeral services, participating in civil litigation or criminal prosecution, etc.[7]

The June 18 executive action expands parole in place to enable certain noncitizen spouses of U.S. citizens to apply for lawful permanent residence without having to leave the U.S. The noncitizen spouse must meet the following criteria:

  • be present in the United States without admission or parole;
  • have continuously resided in the United States for 10 years or more as of June 17, 2024;
  • have been legally married to a U.S citizen as of June 17, 2024;
  • have not been convicted of a disqualifying criminal offense; and
  • do not pose a threat to national security or public safety and otherwise merit a favorable exercise of discretion.

Those who are approved after the Department of Homeland Security (DHS)’s case-by-case assessment of their application will have three years to apply for permanent residency; in the meantime, they can remain with their families in the U.S. and be eligible for work authorization.[8] It is estimated that approximately half a million noncitizen spouses could meet the criteria and be eligible for this program[9], along with 50,000 noncitizen children (under the age of 21) of those noncitizen spouses.[10] We are still expecting publication of the form and accompanying Federal Register notice to understand the exact eligibility criteria.  Nevertheless, this is a welcome measure aimed at protecting certain families from unnecessary separation and procedural uncertainties and is in line with the administration’s stated goal of “keeping families together.”[11]

The executive action also proposes protective measures for Deferred Action for Childhood Arrivals (DACA) recipients who have earned a college degree in the United States, and an offer of employment from a U.S. employer in a field related to their degree, to receive employment visas more swiftly.[12] DACA recipients typically need a waiver to apply for the H1B visa, and the new policy would aim to clarify and streamline guidance around the waiver.[13] The true efficiency of such a measure will likely depend on its implementation. While we support measures in favor of expanding protections to DACA recipients and other dreamers, the scope of this protection appears quite limited and ultimately puts the fate of DACA recipients into the hands of employers who may or may not decide to invest in the visa process for otherwise eligible individuals.

We applaud these measures but note that executive actions such as this one are likely to be challenged in court and can easily be canceled or revoked, creating more uncertainty in an already outdated and convoluted immigration system. We continue to urge broader immigration reform through Congress to create lasting pathways to citizenship for all impacted members of our community.

Immigration and Nationality Law Committee
Dorian E. Rojas and Ludivine Van Der Heyden, Co-Chairs

July 2024

Footnotes

[1] See “Fact Sheet: DHS Announces New Process to Promote the Unity and Stability of Families” https://www.dhs.gov/news/2024/06/17/fact-sheet-dhs-announces-new-process-promote-unity-and-stability-families?mc_cid=825fdb0707&mc_eid=e3c72701e9 (All websites last accessed on July 8, 2024).

[2] Inspection is a formal process by which the U.S. Custom and Border Protection (CBP) determines if individuals may lawfully enter the U.S.  During the inspection process, officers verify a person’s identity and admissibility by taking their fingerprints and reviewing their documentation.  Upon inspection, a CBP officer then determines whether to admit, deny, parole, or defer inspection.  To become admitted, individuals must have applied to enter the U.S. at a port of entry and an officer inspected the individual and authorized their entry.  During this process, a person can also be paroled.  To be paroled is to be granted entry to the U.S. for a short amount of time for a specific, usually humanitarian, purpose.  See INA § 101, INA § 212, and 8 CFR 235.2.

[3] INA § 245(a), see also 9 FAM § 504.2.

[4] Keeping American Families Together, “Parole in Place for Undocumented Spouses of U.S. Citizens,” June 18, 2024, https://www.fwd.us/news/parole-in-place-citizen-spouses/.

[5] 8 CFR § 212.5, INA § 212(d)(5)(A).

[6] See id.

[7] See id.

[8] See “FACT SHEET: President Biden Announces New Actions to Keep Families Together,” June 18, 2024, https://www.whitehouse.gov/briefing-room/statements-releases/2024/06/18/fact-sheet-president-biden-announces-new-actions-to-keep-families-together/.

[9] Supra note 1.

[10] Id.

[11] Id.

[12] See “Background Press Call by Senior Administration Officials on New Actions to Address Our Broken Immigration System,” June 17, 2024, https://www.whitehouse.gov/briefing-room/press-briefings/2024/06/17/background-press-call-by-senior-administration-officials-on-new-actions-to-address-our-broken-immigration-system/. Over the last 12 years, DACA has made it possible for over 800,000 noncitizen children, who were brought as young children to the U.S. by their parents, to pursue an education and work lawfully in the U.S.

[13] Id.