For many noncitizens married to U.S. citizens, the path to lawful permanent residence has been fraught with challenges for those who entered the U.S. without “inspection and admission” or parole. Under current laws, many are required to apply for a waiver of the unlawful entry, and then are required to leave the U.S. for consular processing, risking potentially long and uncertain separations from their families. It is not uncommon for families to decide that the risk and uncertainty is just too great.
To address this issue, the Department of Homeland Security (DHS) is launching a new process aimed at keeping families together. This new approach will allow certain noncitizen spouses who meet specific criteria to apply for lawful permanent residence without leaving the United States.
Starting August 19, 2024, DHS will consider, on a case-by-case basis, requests from certain noncitizen spouses of U.S. citizens. This process applies to noncitizens who have lived in the United States for 10 years or more, do not pose a threat to public safety or national security, are otherwise eligible for adjustment of status, and merit a favorable exercise of discretion.
Eligible noncitizens will be able to apply for lawful permanent residence without having to leave the United States. DHS estimates that approximately 500,000 noncitizen spouses could benefit from this process, with an average residence in the U.S. of 23 years. Around 50,000 children of these spouses will also be eligible.
Eligibility for this new process requires that individuals:
- Be present in the United States without admission or parole.
- Have been continuously present in the United States for at least 10 years as of June 17, 2024.
- Have a legally valid marriage to a U.S. citizen as of June 17, 2024.
Additionally, applicants must have a clean criminal record and not pose a risk to national security. Noncitizen children of eligible spouses may also be considered if they are physically present in the United States and have a qualifying stepchild relationship to a U.S. citizen as of June 17, 2024.
To be considered, individuals must file a form with U.S. Citizenship and Immigration Services (USCIS), provide supporting documentation, and pay a fee. USCIS will assess each request on a case-by-case basis, considering factors such as immigration history, criminal history, background checks, and national security and public safety vetting.
These new measures aim to alleviate the hardship and uncertainty faced by many families due to the current requirement for noncitizen spouses to leave the United States for processing. Further details regarding eligibility and the application process will be published on the implementation date, with USCIS rejecting any filings or requests received before the application period begins on August 19, 2024.
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.