Update on New Immigration Initiatives by President Biden

On June 18, 2024, President Biden unveiled new policies through the U.S. Department of Homeland Security (DHS) aimed at keeping American families together and easing the visa process for U.S. college graduates, including Deferred Action for Childhood Arrivals (DACA) recipients and other undocumented noncitizens.

It is important to note that these processes have not yet started, and U.S. Citizenship and Immigration Services (USCIS) will reject any filings or individual requests received before the application period begins later this summer. USCIS will soon publish a Federal Register Notice to implement this process, explain the application process, and provide additional guidance on requirements to be considered for parole in place.

At a Glance

New Immigration Relief Programs: The White House and DHS have announced plans to introduce two upcoming programs to facilitate pathways to permanent residence for certain undocumented spouses of U.S. citizens and to transition Dreamers with U.S. degrees and job offers to H-1B or other employment-based nonimmigrant statuses.
Program for Undocumented Spouses of U.S. Citizens: Expected to begin later this summer, this program will allow certain undocumented spouses of U.S. citizens to apply for permanent residence within the United States through the adjustment of status process, avoiding the need to apply abroad.
Relief for DACA recipients and Dreamers: This program aims to ease the path to employment-based nonimmigrant visa statuses for DACA recipients and Dreamers with U.S. degrees, though specific details are yet to be announced.
Federal Register Notice: Further details on both programs will be published in a Federal Register notice, the timing of which is currently unknown.

Spouses of U.S. Citizens

Under current law, noncitizens married to a U.S. citizen may apply for lawful permanent residence based on their marriage. However, if they had entered without inspection, many must first leave the United States to obtain their immigrant visa from a U.S. Consulate abroad, resulting in prolonged separation from their families. To address this, DHS will establish a process allowing certain noncitizen spouses to apply for lawful permanent residence without leaving the United States.

DHS estimates that approximately 500,000 noncitizen spouses of U.S. citizens could be eligible for this process; on average, these noncitizens have resided in the United States for 23 years. Approximately 50,000 children of these spouses will also be eligible.

To be considered, an individual must:

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, and
Have a legally valid marriage to a U.S. citizen as of June 17, 2024.

Individuals must also have no disqualifying criminal history, not constitute a threat to national security or public safety, and should merit a favorable exercise of discretion.

Noncitizen children of potential requestors may also be considered for parole if they are physically present in the United States without admission or parole and have a qualifying stepchild relationship to a U.S. citizen as of June 17, 2024.

To be considered for parole, an individual will need to file a form with USCIS along with supporting documentation and pay a fee. Further information, including a Federal Register notice, will be published soon.

Upon receipt of a properly filed parole in place request, USCIS will determine on a case-by-case basis whether a grant of parole is warranted. All requests will consider the applicant’s immigration history, criminal history, background check results, and other relevant information. USCIS has strong processes to identify and address potential fraud to ensure the integrity of this program.

An individual who meets the criteria listed above may be granted parole for up to three years. This period allows the eligible spouse to file a Form I-485, Application to Register Permanent Residence or Adjust Status (and concurrent Form I-130, Petition for Alien Relative, if applicable). At the conclusion of the parole period, USCIS anticipates that these individuals will have either a pending adjustment application or final adjustment adjudication completed.

College-educated DACA Recipients and Dreamers

Many DACA recipients and other Dreamers have pursued academic degrees and careers in STEM, healthcare, teaching, and other fields requiring specialized training. Based on their education and accomplishments, they may have credentials that would qualify them for employment-based temporary visas, but they are not eligible because of their undocumented immigration status. Such temporary visa status could also allow them to adjust their status and fill critical workforce needs. This ineligibility for a temporary visa could be waived through what is now referred to as a D-3 waiver of inadmissibility issued pursuant to §212(d)(3) of the Immigration and Nationality Act.

To apply for these D-3 waivers, applicants generally have to leave the United States and apply at a U.S. Embassy or Consulate. DACA recipients and Dreamers who have accrued more than 180 days of “unlawful presence” in the U.S. and who would be eligible for a visa but for the 3 or 10-year bars to re-entry would have to apply for the D-3 waiver at the U.S. Consulate abroad.

The D-3 waiver can excuse various grounds of inadmissibility, including unlawful presence. An approved D-3 waiver removes this bar for temporary visa purposes, allowing DACA recipients to obtain employment-based temporary visas, such as an H-1B visa, at a U.S. Consulate abroad and then enter the United States in valid status with work authorization.

Currently, obtaining a D-3 waiver is a lengthy and uncertain process. Due to limited guidance, DACA recipients must risk leaving the United States and waiting abroad for an unknown period for their waivers to be adjudicated. This process deters many eligible DACA recipients and employers from pursuing this route.

The Biden Administration plans to clarify the guidance for D-3 waivers, including updated language in the Foreign Affairs Manual. This change aims to provide more predictable and streamlined access to employment-based visas for eligible DACA recipients and other Dreamers. Clear guidance will help college-educated and workforce-ready Dreamers adjust their immigration status, filling critical workforce needs and benefiting U.S. employers and communities.

What Can You Do Now to Prepare Your Application Before the Process Begins?

Individuals should wait for additional information, including the date on which the process begins, when applications will be accepted, and what forms to use. Until then, individuals may consider preparing by gathering evidence, including:

Documentation to establish that the noncitizen has been continuously present in the United States for at least 10 years as of June 17, 2024,
Evidence of a legally valid marriage to a U.S. citizen as of June 17, 2024, and
Evidence of additional favorable discretionary factors that the applicant would like USCIS to consider.

Please feel free to reach out to our immigration team with any questions about these new policy initiatives.