Cap City Law - Attorneys for the Business of Life

Attorneys for the Business of Life

Keeping American Families Together

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Written by Susan Pai, Senior Associate Attorney, Cap City Law, PS

On June 18, 2024, President Biden announced an Executive Order affecting undocumented spouses of U.S. Citizens who are married to a U.S. citizen and who have been in the U.S. for 10 or more years (as of June 17, 2024). The Executive Order does not specify how long the undocumented applicant must have been married to a U.S. citizen, only that they must be married to a U.S. citizen. The undocumented spouse may be granted parole in place to cure their unlawful entry in the U.S. Parole in place has been historically used to cure the unlawful admissions of spouses, widowers, parents, and children of active-duty members of the U.S. armed forces or military veterans.

Curiously, the Executive Order and its attendant press releases understate the fact that President Biden, through this Executive Order, is addressing the long-standing, unresolved issue of how to give Dreamers (children who were brought to the U.S. illegally by their parents more than 17 years ago) and “new” Dreamers (children who were brought to the U.S. illegally 10 or more years ago) legal status. Although not explicitly stated in the Executive Order, I am confident the definition of “children” will include stepchildren to broaden the category of Dreamers who can be granted parole in place and therefore become eligible to apply for a green card.

Opponents of immigration reform will undoubtedly file a lawsuit to prevent Biden’s Executive Order from going forward. A federal judge may prevent the Executive Order from going forward if, for example, the judge finds the Biden administration skirted the formal rule-making process or believes that granting parole in place to an entire category of undocumented spouses and children goes beyond the President’s authority. Additionally, because this is an Executive Order, it can certainly be reversed by a new president.

The Executive Order states that applicants under this Executive Order will be granted work authorization for three years during which they may apply for a green card. Of course, this means President Biden must remain in office for a second term for this program to yield successful results.

Note that those with a prior removal order (deportation) would not qualify for parole in place under Biden’s new Executive Order.

Keeping American Families Together

  • Today, President Biden is announcing that the Department of Homeland Security will take action to ensure that U.S. citizens with non-citizen spouses and children can keep their families together.
  • This new process will help certain non-citizen spouses and children apply for lawful permanent residence – status that they are already eligible for – without leaving the country.
  • These actions will promote family unity and strengthen our economy, providing a significant benefit to the country and helping U.S. citizens and their non-citizen family members stay together.
  • In order to be eligible, non-citizens must – as of June 17, 2024 – have resided in the United States for 10 or more years and be legally married to a U.S. citizen, while satisfying all applicable legal requirements. On average, those who are eligible for this process have resided in the U.S. for 23 years.
  • Those who are approved after DHS’s case-by-case assessment of their application will be afforded a three-year period to apply for permanent residency. They will be allowed to remain with their families in the United States and be eligible for work authorization for up to three years. This will apply to all married couples who are eligible.
  • This action will protect approximately half a million spouses of U.S. citizens, and approximately 50,000 non-citizen children under the age of 21 whose parent is married to a U.S. citizen.
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