Biden (ALMOST) Announces Relief for Spouses of US Citizens

President Biden is planning to announce a new program that would protect immigrants who are spouses of US citizens against deportation and provide access to a work permit. 

More importantly—for some families—the new policy could mean that their relative no longer must go through a 6+ year process of seeking residence from a consulate abroad and a costly, lengthy waiver process.  Instead, their family member may be able to seek residence—without the risk of leaving the US—in a matter of months.

Details of the program have not been confirmed, much less published (the White House says the official announcement will come tomorrow).  Sources say it will function like a similar existing program, military parole in place (sometimes called “PIP”) for family members of active and former service members.    The fact that military PIP hasn’t been challenged in the courts makes it more likely that the new program won’t be stopped by the usual anti-immigrant types.

There will be an application process involving a form (likely the I-131) and a filing fee.  In addition, the applicant will need to show they meet all requirements, including positive equities to overcome any negative discretionary factors, such as criminal history or immigration violations. 

Approved cases should qualify for a work permit.  And, best of all, being approved for the program may mean that spouses no longer have to go through the lengthy, expensive I-601A waiver process that can take more than six years before applicants see a green card.  And some families who are already in that backlog may choose to file under the new program to cut years off the process and avoid any risks of taking a case to a US consulate abroad, even if they have to invest additional fees and costs in the new option. 

Sources say that we should expect the following requirements:

• Ten years in the US (residing here on or before June 17, 2014; brief/casual departures may not disqualify someone but may otherwise impact their immigration case, depending on the details of their entries and exits);

• Married to a US Citizen—there may be a cut-off date (and no, we don’t know how this will apply to spouses of legal permanent residents/green card holders who can naturalize to US citizenship; individuals in Colorado and some other states may be able to qualify if they have a Common Law marriage);

• Present in the US **WITHOUT** having been admitted on a visa or parole.

That’s it.  We don’t know any more than that.  And anyone who says different—unless they work in the White House—well, they’re just guessing.

However, just meeting these simple requirements may not be enough to be successful.  Parole is an extraordinary power, and as such, the government uses it sparingly.  Each applicant will have to show they are worthy of discretion, as determined on a case-by-case basis, based on a review of positive and negative factors in their case.

NOT EVERYONE WILL BENEFIT.  AND NOT EVERYONE SHOULD APPLY.  Immigration law is exceedingly complex.  For some people, applying for this program could be a one-way ticket back home; for others, they don’t need to pay more or wait even longer for a new program but are already able to seek residence based on their current circumstances.

KNOW BEFORE YOU FILE:  Learning about your options and choosing what’s best for you and your family is the best reason to get a full case review by a reputable immigration attorney BEFORE you pay, sign, or commit to anything.  A good attorney will review your (and often your family’s) immigration history, any criminal history, positive and negative factors in your case, as well as any alternatives.  The attorney should provide a quote for costs and fees, in writing.  And yes, even if a staff member helps get your background information, a legal evaluation must come from an attorney because it’s the most important kind of legal advice. 

THIS PROGRAM WILL BE DISCRETIONARY:  We already know that each case will be reviewed on a case-by-case basis, and a decision will be made in the discretion of the immigration authorities, based on a totality of the circumstances.  That means some cases that look promising may not be successful, and others that look like a lost cause may still be worth fighting.

Here are some reasons to consult with an immigration attorney BEFORE applying:

• Negative or complex prior immigration history, including:

• Prior visa denial

• Refused entry or admission at US Port of Entry or Airport

• Visa revocation or cancellation

• Actual or mere allegations of visa fraud

• Multiple illegal entries (“entry without inspection”)

• Fraud or misrepresentation in any application, interview or other interaction with US immigration officials

• False claim to US citizenship or Voting in a US election (unless authorized at the state or local level)

• Criminal history (including some types of traffic offenses)

• Entry after lawful admission or parole

• If you came to the US using a visa, visa waiver, ESTA, border crosser card/BCC, or other type of formal travel document, or if you were already granted parole by immigration authorities, you probably don’t need this program.

• Most people who were inspected and admitted or paroled area already eligible to apply for permanent residence based on marriage to a US citizen or if they are the parent of a US citizen who is over 21, or if they are the son or daughter of a US citizen and still under age 21.

DON’T GET SCAMMED: no one really knows the details yet, so beware of anyone claiming to know or taking applications online. Once the program is officially announced you will be able to find information on the official www.USCIS.gov website and from other reputable sources. Find out if this program is right for your family—or if there is a better option, and avoid the risk of detention and/or deportation if your case is an enforcement priority.