In a file photo, DACA recipients and their supporters rally outside the U.S. Supreme Court on June 18, 2020 in Washington, DC., when the court, in a 5-4 decision, denied the Trump administration’s attempt to end DACA. (Photo by Drew Angerer / Getty Images)
The Biden administration recently announced exciting news that will provide new protections to certain spouses of U.S. citizens and streamline access to work visas for recipients of Deferred Action for Childhood Arrivals.
The announcement comes on the heels of the 12th anniversary of the signing of DACA by President Obama (and Biden as vice-president). Here’s some key pieces of the new process announced by the Biden-Harris Administration, via a White House fact sheet:
Keeping families together
Eligible spouses and children can apply for lawful permanent residence (green card) — a status that they are already eligible for — without leaving the U.S. (This is often called “Parole in Place.”)
You have to have resided in the United States for 10 or more years and be legally married to a U.S. citizen. The White House says those who are eligible for the process have resided in the U.S. for an average of 23 years.
The Department of Homeland Security will do a case-by-case assessment of applications. Once approved, people will have three years 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 will help a lot of people: About half a million spouses of U.S. citizens, and about 50,000 noncitizen children under the age of 21 whose parents are married to U.S. citizens, according to the White House.
Easing the visa process for U.S. college graduates, including Dreamers
Immigrants — inlcuding DACA recipients and other Dreamers — who have earned a higher education degree in the U.S., and who have received a job offer from a U.S. employer in a field related to their degree, will be able to receive work visas more quickly.
You can read the announcement from the White House here.
More thoughts on what it all means
This is an executive order, which means that it can change under a different president. Executive orders come from the president, who is the “manager” of federal government operations. Only Congress can change the law to fix our broken immigration system, which has not been truly updated for decades. DACA is also an executive order. This new executive order will be posted by the Federal Register here.
The process has not been announced, so no one can apply yet. The Department of Homeland Security will announce the application process later this summer. For reference, DACA was announced June 15, 2012. The application process was finalized a few months later, and the process opened and the government started accepting applications in August 2012 (2 months later).
Sadly, as with DACA and a similar program known as DAPA, we can expect Republicans to try to block the implementation of this executive order. Politically charged cases are often brought into friendly courts — known as forum shopping — in order to get the outcome those suing desire. The Trump campaign and Republicans are already blasting the Biden administration for providing these protections to families and Dreamers.
DHS will announce the process for qualifying spouses and children. The announcement says that they must be eligible for a green card under current federal law and will also apply for “Parole in Place” (PIP). Applicants will need to submit documentation to prove to DHS that they qualify for the green card, including being eligible for needed pardons for visa-overstays and others, and with PIP, will not need to leave the U.S., as is currently required. PIP already exists for military members and their families. If applicants provide enough evidence to DHS, they will get a work permit (and Social Security number if they never had one); and PIP will allow applicants to stay in the U.S. during the process to eventually apply for their permanent residence (green card). The PIP will give applicants three years to apply for permanent status (green card). Read the DHS statement here.
DHS and the State Department will eventually publish a process for qualifying individuals — including DACA-holders, Dreamers and others — who will be able to apply for a nonimmigrant employment visa. The announcement makes it clear that State will streamline the visa process by providing D-3 waivers for qualifying individuals to be able to receive these nonimmigrant work visas without the fear of getting stuck outside of the U.S., given that present rules complicate things for people with unlawful presence in the U.S. (also called immigration bars or inadmissibility grounds). This is a game-changer for people to access these visas, which can result in permanent residency (green card) and U.S. citizenship later on. You can read the State announcement here, as we wait for the guidance for consular offices this coming July.
For reference, when “Advance Parole” was opened for DACA-holders, it gave DACA-holders married to a U.S. citizen the ability to obtain a legal entry into the U.S., which then people could apply for a green card through their marriage (if they met all required criteria). Changes like the ones recently announced will benefit many people and change lives.
A note of caution: I often get into arguments with family and friends about what people believe is going on. There is always someone who says, “So-and-so was able to fix their immigration status and so should you.” It’s important to consult an immigration attorney before going forward with this process, especially folks who have multiple entries into the U.S., overstays, unlawful presence or a criminal record of any sort (including those darn traffic violations). As with DACA, many were ineligible to benefit because of certain criminal convictions, and we can expect the same with this program. People should be careful. I know too many people who believed what the neighbor said and got into immigration troubles. This is a very serious process, and people should do their research and understand their individual case before going forward.
A personal note:
As a DACA-holder myself, I was very excited to see the Biden administration announce these changes. As when DACA was announced, I started to think about the people who will benefit. DACA truly did change my life and those around me in many ways. I graduated law school, own a home, and saw my sisters in Mexico with Advance Parole after over a decade of not seeing them in person. I also felt uneasy watching the news, knowing full well that Republicans will do everything they can to block these benefits from materializing for our families.
We still need immigration reform, but with Congress failing time and time again, and Republicans taking their instructions to do nothing on immigration to benefit Trump’s re-election bid, I am ecstatic to see this announcement.
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