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Quick Hits
- According to two new initiatives, spouses of certain U.S. citizens and their noncitizen children who were not lawfully admitted to the United States, but who have continuously resided in the United States, may be eligible to apply for employment authorization and permanent residency.
- Certain DACA recipients and undocumented individuals will be eligible for faster work visa processing, including recommendations for nonimmigrant visa ineligibility waivers.
- These initiatives are intended to allow families to remain together and may also help employers retain their critical employees and enable them to hire such individuals with decreased risk of lapses in U.S. work authorization.
The White House said the new program initiatives, sketched in fact sheets, will be implemented on August 19, 2024. The specific program eligibility criteria and application processes will be published in the Federal Register later this year, but the initiatives are shaping up to involve a multiagency effort to facilitate an unprecedented path to legalization for these groups.
Undocumented Spouses of U.S. Citizens: Parole in Place and Work Authorization
Undocumented spouses of U.S. citizens will be able to obtain lawful parolee status and employment authorization by applying for “parole-in-place.” To be eligible, individuals must:
- have last entered the United States without inspection;
- as of June 17, 2024, have continuously resided in the United States for at least ten years and have been physically present in the United States;
- be legally married to a U.S. citizen on or before June 17, 2024;
- have not committed any disqualifying crimes or otherwise pose a threat to national security or public safety; and
- merit favorable exercise of discretion for approval.
Minor children of potentially qualified applicants who have a qualifying stepchild relationship with a U.S. citizen as of June 17, 2024, may also apply for parole in place.
The parole in place program has already been utilized to provide undocumented spouses of military personnel parolee status and work authorization and ultimately allows them to apply for permanent residency without triggering immigration penalties for entering the United States without lawful admission. The administration’s expansion of the parole in place program to cover undocumented spouses and stepchildren of U.S. citizens will extend this relief to an estimated 550,000 individuals, allowing them to legalize their status and obtain permanent residency within the United States.
Public Interest in Work Visa Applications for U.S. College Graduates
The policy initiative also intends to facilitate work visa applications for DACA recipients and undocumented individuals who have received a bachelor’s or higher degree from an accredited U.S. higher education institution. In conjunction with the U.S. Department of Homeland Security (DHS), the U.S. Department of State issued a policy update to ease the nonimmigrant visa application process for applicants who possess a U.S. bachelor’s or higher degree, are seeking to apply for certain nonimmigrant work visas, and require a grant of a waiver of ineligibility under Section 212(d)(3) of the Immigration and Nationality Act (INA), or a “D-3 waiver.” This waiver allows individuals who have previously failed to maintain lawful immigration status to receive visas and travel to the United States.
Specifically, the new policy directs consular officers to give strong positive weight when reviewing waiver applications from visa applicants who possess a U.S. bachelor’s or higher degree, or have otherwise earned credentials to perform skilled labor in the United States, and are seeking to travel to the United States. Applicants must otherwise meet the qualifications for the visa they are seeking to apply for, such as an approved visa petition supported by a bona fide job offer from a U.S. employer. They must also demonstrate they meet the remaining criteria for granting the waiver. Additionally, consular officers are encouraged to request DHS to expedite waiver applications that meet these criteria. DHS has confirmed it will follow the same policy in reviewing D-3 waiver requests. The expansion of the D-3 waiver will not only streamline the visa application process for undocumented individuals but also create a new option for them to legalize their immigration status in the United States.
Policies May Be Met With Challenges
These policy initiatives provide hope for long-term residents, including Dreamers, amidst legal challenges to the DACA program and congressional standstill. At the same time, the longevity and long-term impact of these initiatives may be uncertain unless DHS and the State Department formalize them through rulemaking.
Moreover, these initiatives may face legal and congressional challenges similar to those faced by the DACA rule. First, the DACA program, set forth largely through similar presidential policies, then subsequently through agency rulemaking, is still being litigated in federal court. Subsequently, DHS formalized DACA through rulemaking to further protect the program. DACA is now being challenged regarding the agency’s authority to make the rule. Additionally, the Supreme Court overturned the Chevron deference doctrine, significantly curtailing the executive branch’s ability to push initiatives through policy or rulemaking. This is in line with Supreme Court decisions over the past few years that have limited the rulemaking ability of federal agencies, including the U.S. Environmental Protection Agency, the Occupational Safety and Health Administration, and the U.S. Department of Health and Human Services. As such, immigration-related policy initiatives and proposals stemming from the executive branch, such as the instant policy initiatives, may also face similar challenges.
Second, the impact of these initiatives can be hard to predict if implementation becomes delayed. U.S. Citizenship and Immigration Services (USCIS) continues to face significant backlogs and limited resources despite its recent efforts to streamline processing. Processing times for many immigration benefits applications remain lengthy as USCIS works to meet its processing time goals. Hence, the agency may face some challenges in the initiatives’ timely implementation or execution.
If these initiatives are successfully implemented, they may significantly benefit employers. A 2023 DACA survey found that 94.1 percent of DACA recipients were employed, 65 percent of recipients pursued educational opportunities, and an additional 21.4 percent of recipients planned to pursue educational opportunities. Of those already pursuing education, 73.5 percent of DACA recipients were pursuing a bachelor’s degree or higher. This population may be a critical demographic for many employers as these DACA recipients can be expected to start entering the workforce.
Next Steps
In the coming weeks, both DHS and the State Department are expected to release the details of these actions including program implementation dates, eligibility application procedures, fees, and policy guidance in the Federal Register. After publication in the Federal Register, these two new initiatives are expected to be implemented by the end of summer 2024.
Ogletree Deakins’ Immigration Practice Group will continue to monitor developments and will publish updates on the Immigration blog as additional information becomes available.
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