On September 4, 2024, U.S. District Judge J. Campbell Barker for the Eastern District of Texas, Tyler Division, signed an Order denying the Motion of the U.S. Department of Homeland Security (DHS) to lift his prior Order staying the issuance of parole in place (PIP) under the Keeping Families Together (KFT) rule for 14 days.1 Now, the stay and temporary restraining order are effective to prevent the approval of parole under the KFT Rule until the end of September 23, 2024.
Consistent with the practice of DHS since the imposition of the initial administrative stay on August 26, DHS is not prohibited from accepting parole applications under the KFT Rule for review. The consolidated hearing on motions and a bench trial, if needed to resolve factual issues, is scheduled for September 18, 2024. Of course, this hearing is very close to election day on November 5.
The administrative stay initially ordered on August 26 ended the adjudication of KFT Rule parole applications shortly after they were initially accepted, starting on August 19. The lawsuit was filed against the KFT program by 16 states, with the lead plaintiff being the State of Texas.2
Who can benefit from KFT PIP?
Qualifying Spouses and stepchildren of U.S. citizens (USC) present in the U.S. may benefit from PIP under the KFT Rule. Please refer to the firm's prior blog on the specifics of the KFT program here. For undocumented spouses to qualify, they must be present in the U.S. without being admitted or paroled into the U.S. and have been continuously present in the U.S. for at least ten years as of June 17, 2024. They must also have a legally valid marriage to a USC as of June 17, 2024. They may not have a disqualifying criminal history or be a threat to national security or public safety. Qualifying stepchildren of USCs must also be present in the U.S. without being admitted or paroled and have a qualifying stepchild relationship to a USC as of June 17, 2024. The USC parent of the stepchild must have entered into the marriage with the stepchild's parent before the stepchild's 18th birthday. Stepchildren are not subject to the ten-year physical presence requirement.
What benefits are possible under KFT PIP?
Those approved for KFT PIP may apply for employment authorization based on their KFT Rule status for three years. At present, there is no expectation that this work authorization will be extended beyond the three years.
Those who qualify to adjust their status in the U.S. to permanent residence will be able to remain in the U.S. with their sponsoring relative. The barrier to remaining in the U.S. while being processed for an application for permanent residence due to entering the U.S. without inspection or being admitted is removed for KFT PIP beneficiaries. Normally, such applicants would have to depart the U.S. to apply for their immigrant visa after the approval of an unlawful presence waiver (e.g., I-601A). Note that currently, these I-601A waivers take over two years alone to be approved. There is, of course, no guarantee of visa issuance. Thus, the process to apply for an immigrant visa abroad at a U.S. consular post is uncertain as a result and can take many years.
What should we remember about U.S. immigration law as to spouses of USCs?
Under existing U.S. laws, immediate relatives of USCs benefit from preferential treatment as to processing for permanent residence (aka green card) as well as visa allocation. Immediate relatives include spouses of USCs, unmarried children under 21 years of age of USCs, or parents of a USC if the USC is 21 years of age or older. U.S. immigration law does not place a limit on the number of immigrant visas available each year for immediate relatives to immigrate to the U.S. Immediate relatives are not currently excused from being in the U.S. without being inspected or admitted in order to qualify to remain in the U.S. to apply for adjustment to permanent residence. They are still allowed to qualify to apply for adjustment of status in the U.S. post legal admission, even if they overstayed their period of authorized stay or worked without authorization in the U.S.
Post and during the pandemic, immediate relatives, as well as other categories of legal immigrants, have been subject to historic delays in processing to immigrate lawfully to the U.S. when either applying for adjustment to permanent residence in the U.S. or applying for an immigrant visa abroad outside the U.S. At least those immediate relatives waiting in the U.S. for processing for permanent residence are able to apply for work authorization and the ability to travel outside of the U.S. pending adjudication. Obviously, they are also able to remain with their sponsoring USC in the U.S. It can easily take a Mexican national spouse, for example, of a USC over two to three years to be issued an immigrant visa at a U.S. consular post abroad (i.e., Cd. Juarez). As a snapshot, the I-130 petition filed for to classify an applicant as an immediate relative currently takes approximately 15.5 months for 80% of the cases pending at US Citizenship and Immigration Services (USCIS). The adjustment application (I-485) takes approximately 12 to 17.5 months for 80% of the cases, depending on the USCIS field office. There is no premium processing or rapid path payment option to use for these applications.
Why do these 16 states assert that the KFT Rule will harm them?
Some of the assertions of the states in the lawsuit include:
- Incentive for illegal immigration,
- Drive down wages to residents,
- Uncompensated healthcare to public hospital districts, and
- Increased law enforcement, crime, environmental harm, and social disorder.
It is important to fact-check these assertions. Please review the resources available as to the economic, tax, and wage data state by state compiled by the American Immigration Council, the Federal Reserve Bank of Dallas, and the Congressional Budget Office, among many other sources, as to migrant-related costs and benefits.
Again, the focus of this lawsuit is against qualifying spouses and stepchildren of USCs, who were not inspected for admission to the U.S. For the qualifying spouses, they have been in the U.S. for at least ten years as of June 17, 2024. It bears repetition that the KFT Rule does not convey a benefit to spouses of USCs with entries to the U.S. not made at a port of entry, who has not been in the U.S. for at least ten years as of June 17, 2024. The KFT Rule expands the preferential treatment provided historically under U.S. laws to close family members of USCs.
The comparable Military PIP program is another example of using discretionary parole to make legal common sense a reality. Certain spouses, widowers, parents, sons, or daughters of active duty members of the U.S. armed forces; those in the Selected Reserve of the Ready Reserve; or a military veteran who served in active duty or in the Selected Reserve of the Ready Reserve may qualify for work authorization and potentially permanent residence even if not inspected or admitted to the U.S.
We also have an existing registry-based permanent residence option for qualifying beneficiaries who were physically present in the U.S., even without inspection or admission before January 1, 1972.
Under U.S. laws, including U.S. immigration law, we commonly use discretion to make decisions based on weighing the facts, risks, and equities to try to resolve difficult situations with a lawful solution.
Could the result of the 2024 presidential election end the KFT Rule?
Yes, that is possible, no matter the lawsuit. In that regard, the August 20, 2024, Federal Register notice implementing the KFT Rule indicates that "generally" DHS will not use information contained in the KFT I-131F application and supporting documents to "initiate" immigration enforcement action against the applicant unless the applicant poses a threat to national security, public safety, or border security. So, might it be possible for DHS to initiate a deportation action against an applicant using the information provided. Might an assessment of eligibility and the likelihood of approval of cancellation of removal be critical to KFT applicants? Of course.
While it is still possible to file an I-131F under the KFT Rule, potential applicants need to consult with competent legal counsel to assess the potential risks, impediments, and timeline for relief/benefits. Right now, the availability of the KFT program benefits in time is very uncertain.
Footnotes
1 See 89 Fed. Reg. 67,459 (Aug. 20, 2024) (KFT Rule).
2 The other States joining Texas in the lawsuit are: Alabama, Arkansas, Florida, Georgia, Iowa, Kansas, Louisiana, Missouri, North Dakota, Ohio, South Carolina, South Dakota, Tennessee, Wyoming, and Idaho.
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