U.S. Citizenship and Immigration Services (USCIS) continues to keep spouses and stepchildren of U.S. citizens in suspense regarding the process and requirements for filings that may be made on Monday, August 19, 2024, for qualifying applicants for the new Parole-in-Place (PIP) program to seek legal permanent residence (LPR) while remaining in the United States (U.S.) (PIP Family Unity program). We are waiting to see what the expected Federal Register notice will reveal, including any estimation of processing times. Current expectations are that the much anticipated Federal Register notice will be issued close to the August 19 start date. The significant benefits for applicants who qualify will be the ability to: (a) obtain work authorization pursuant to temporary legal status while remaining in the U.S. and (b) remain in the U.S. while their applications to adjust their status in the U.S. to permanent residence (green card) are adjudicated even though they entered the U.S. without inspection.
It is possible that the PIP Family Unity program:
- May never be implemented.
- If implemented, may be challenged in court with resulting delays and ongoing uncertainty as to any benefits.
- May have seriously long processing times.
- May expose applicants to potential enforcement actions based on their undocumented status.
- May offer protections to a small segment of potential applicants due to prior deportation and reentry to the U.S. without inspection, as well as other disqualifying factors.
Background
For background about the PIP Family Unity program, on June 18, 2024, the Biden Administration announced an expanded "parole in place" policy to provide temporary legal status and work authorization, as well as potential permanent residence, to undocumented immigrants in the U.S. who are married to U.S. citizens and who entered the U.S. without inspection. Prior to this announcement, a U.S. citizen could file an I-130 immigrant petition on behalf of their undocumented spouse living in the U.S. after entry without inspection (EWI). In order to apply for permanent residence, however, most of these spouses would have been unable to apply for permanent residence while remaining in the U.S. Due to the noncitizen spouse's EWI, they would not be eligible to apply for adjustment of status (I-485) within the U.S. and would be required to leave the U.S. to apply for an immigrant visa at a U.S. Consulate/Embassy abroad. In addition, since the departure of EWI spouses after 180 days or more of unlawful presence in the U.S. would trigger a bar to reentering the U.S. without an approved waiver of the bar to their admission to the U.S., they also would need to apply for an inadmissibility waiver and wait the requisite time period. Both processes are long and uncertain.
The Biden Administration's new policy would allow qualifying undocumented spouses of U.S. citizens to apply for permanent residence without having to depart the U.S. This new policy marks a drastic but logical change to provide relief to a small segment of the undocumented population – spouses and stepchildren of U.S. citizens. This proposed policy follows another type of relief provided as to inadmissibility waiver processing of unlawful presence for these families via the I-601A provisional waiver option, which allows an undocumented spouse of a U.S. citizen to apply for an inadmissibility waiver while remaining in the U.S. Unfortunately, due to heavy demand for these waivers, processing times have increased from 4.6 months in fiscal year 2017 to approximately 43 months (almost four years) based on present posted processing times by USCIS. Delays in obtaining an immigrant visa appointment scheduled at a U.S. consular post after the waiver is approved can also take years, even for these immediate relative spouses.
The U.S. Department of Homeland Security (DHS) estimates that approximately 500,000 undocumented spouses of U.S. citizens could be eligible for the new PIP Family Unity program, as well as approximately 50,000 noncitizen children of these spouses. We know that the USCIS has used a PIP program for many years to benefit certain close relatives of qualifying military members and veterans. (Military PIP). The Form I-131, Application for Travel Document, is the form used for this PIP program. The normal I-131 filing fee is currently $630, from which qualifying military members are exempt. It is important to consider that the Military PIP was subject to restrictions during the Trump administration and that the Trump campaign has already been critical of the PIP Family Unity program. In 2020, Congress did pass legislation confirming the executive branch's PIP authority in support of PIP for military families (Pub. L. No. 116-92, Section 1758, Dec. 20, 2019), pursuant to section 212(d)(5) of the Immigration and Nationality Act, as amended [8 USC §1182(d)(5)]. As noted by former Solicitor General under President George W. Bush, Theodore B. Olson, in a recent article in the Washington Post, the proposed PIP Family Unity program meets both of the goals set forth by Congress in authorizing parole discretion: urgent humanitarian reasons and a significant public benefit. It should be expected that this program will be challenged via litigation.
PIP Family Unity Program Overview – What We Know
The following is a summary of what we do know regarding the PIP Family Unity program:
A. Eligibility
Individual applicants are considered on a case-by-case basis. In order to be considered, an individual must:
- Be present in the U.S without admission or parole (This requirement means that an applicant who entered the U.S. with inspection and overstayed their period of admission would not qualify.);
- Have been continuously present in the U.S. for at least ten (10) years as of June 17, 2024;
- Have a legally valid marriage to a U.S. citizen as of June 17, 2024;
- Not have a disqualifying criminal history or otherwise constitute a threat to national security or public safety;
- Otherwise, be eligible for adjustment of status to LPR status; and
- Merit a favorable exercise of discretion. All applications will consider the applicant's prior criminal and immigration history, the results of background checks, national security and public safety vetting information, and any other relevant information available to or requested by USCIS.
Undocumented children of applicants may also be eligible for this process, if they are physically present in the U.S. without admission or parole and have a qualifying stepchild relationship to a U.S. citizen as of June 17, 2024. To qualify as a stepchild, the noncitizen stepchild must be under the age of 21, unmarried, and their noncitizen parent and U.S. citizen stepparent must have been married before the child's 18th birthday.
Note: USCIS will disqualify any undocumented individual from this program if they pose a threat to national security or public safety. In addition, DHS may detain, remove, or refer such applicants to other federal agencies for further investigation or prosecution.
B. Procedure
- Individuals must file an application with USCIS, submit documentation to demonstrate eligibility, and pay a fee. (As of August 12, we do not have this )
- USCIS will reject any application filed before August 19, 2024.
- USCIS will determine on a case-by-case basis whether a grant of parole is warranted and whether the applicant merits a favorable exercise of discretion. USCIS will utilize its current processes to identify fraudulent documents and statements.
- USCIS may grant a qualifying individual parole (temporary legal status) for up to three (3) years. An individual granted parole is immediately eligible to apply for an Employment Authorization Document (EAD) from USCIS by submitting a Form I-765, Application for Employment Authorization. The EAD cards will reference the (c)(11) category code. Note that it appears that the I-765 application may not be filed until after the parole is granted. Let us hope this step changes in the regulations to allow the two applications to at least be submitted at the same time.
- An individual granted parole may also apply for permanent residence during the parole period without having to depart the U.S. The parole period provides an opportunity for eligible individuals to file Form I-485, Application to Register Permanent Residence or Adjust, with their U.S. citizen spouse's concurrently filed Form I-130, Petition for Alien Relative. USCIS anticipates that these undocumented immigrants will have a pending or approved adjustment application by the end of the parole period (which is granted for up to three years, as noted).
Interested individuals should visit this USCIS web page for the latest updates. Finally, individuals may prepare for the process by creating a myUSCIS account and gathering evidence:
- establishing continuous presence in the U.S. for at least ten (10) years as of June 17, 2024;
- b) documenting a legally valid marriage to a U.S. citizen as of June 17, 2024; and
- c) establishing additional favorable discretionary factors that the individual would like USCIS to consider.
This USCIS web page includes specific examples of evidence to gather. For further information on how to document presence in the U.S., it is useful to remember the history of the legalization (family unity) program created by the passage of the Immigration Reform and Control Act (IRCA) of 1986. While not a parole program, continuous residence documentation was required to be submitted with independent corroboration of the information referenced in the documents. In addition, the registry program as well is a useful comparison regarding the compilation of residency documentation over many years. In the meantime, we will all be waiting for the regulations with much anticipation.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.