Biden Administration’s New Immigration Policy Faces Legal Hurdles.
The Biden Administration’s new immigration policy aimed at keeping families together is already encountering legal and administrative challenges. The policy, announced last week, is under an administrative hold and facing legal scrutiny. Western Slope attorneys are advising eligible immigrants without permanent legal status to apply as soon as possible.
The “Keeping Families Together” policy, published in the Federal Register on August 19, allows noncitizen spouses who have lived in the U.S. for at least 10 years, and qualifying stepchildren of U.S. citizens, to apply for “parole in place.” This status allows them to remain in the U.S. legally while their application for permanent legal status is processed.
Previously, immigrants who entered the U.S. without authorization and married to U.S. citizens faced a complex and risky process to gain permanent legal status. They would need to leave the country, get processed by a U.S. consulate abroad, and then reenter through a green card application submitted by their U.S. citizen spouse.
William McNamara, an attorney with Elevation Law in Dillon, explained the significance of the new policy: “Parole in place eliminates the need for immigrants to leave the U.S., which could potentially prevent their return. It allows them to stay legally while their status is adjusted.”
Parole in place permits applicants to stay in the U.S. for up to three years for urgent humanitarian reasons or significant public benefit. After this period, they can apply for permanent residency following the standard green card process. The policy was initially designed for family members of military personnel.
White House officials estimate that the program could benefit around 500,000 undocumented spouses and 50,000 stepchildren. In Colorado alone, about 12,000 undocumented spouses might be eligible, according to Sen. John Hickenlooper’s office.
Eligibility Criteria
To qualify for parole in place, noncitizen spouses of U.S. citizens must have been married and living in the U.S. since at least June 17, 2014. Noncitizen stepchildren are eligible if they were under 21 and unmarried on June 17, 2024, and have been continuously present in the U.S. since that date. The stepchild’s noncitizen parent must have been married to a U.S. citizen on or before June 17, 2024, and before the stepchild’s 18th birthday.
Parole in place is available only to noncitizens currently residing in the U.S. Spouses who have already left the country to apply for a green card are not eligible.
Applicants must undergo background checks and security vetting. According to McNamara, some individuals in Colorado have already been denied due to criminal history. The disqualifying offenses are broader than those outlined in existing U.S. immigration law.
McNamara noted that felony convictions automatically disqualify applicants, as well as those with convictions for serious offenses such as murder, sexual abuse, human trafficking, domestic violence, and gun-related crimes. Being under active investigation for a crime also disqualifies applicants.
Despite the policy’s implementation just over a week ago, McNamara reported that approvals began as early as August 21. His firm, Elevation Law, has received over 20 inquiries from Colorado residents in the past week.
Smith Immigration, a firm in Glenwood Springs, has assisted at least seven people with applications since August 19.
Legal Challenges
On August 26, federal district court judge J. Campbell Barker issued a temporary hold on the program for at least 14 days, following a lawsuit filed by 16 states challenging its legality. The court may extend the hold through mid-October.
The lawsuit, filed by states including Texas, Alabama, Florida, and Georgia, argues against the policy’s legality. This move was anticipated by immigration attorneys, who have seen similar legal challenges in the past.
A group of undocumented immigrants and their U.S. citizen spouses have also filed a motion to intervene in the lawsuit. Federal immigration services continue to accept applications but may not approve them until the hold is lifted.
If the court upholds the hold, approvals may resume after the 14-day period or later if extended. If the program is permanently blocked, applications submitted during the hold period could still be reviewed, or USCIS might be instructed to deny them.
Advice for Potential Applicants
Immigration attorneys advise potential applicants to carefully consider their options due to the program’s uncertain future and the application fee of $580, which is non-refundable. Some may choose to wait or explore alternative paths to permanent residency.
McNamara and Smith suggest that those who meet the qualifications and are free of disqualifying factors should apply as soon as possible. Applications can be submitted online using Form I-131 at USCIS.gov. Denied applicants will not be referred to ICE unless they are deemed a threat to national security or public safety.
Smith concluded, “If you can afford it, and if it makes sense for your situation, then completing the application process is advisable. But each case is different.”