Generally, one of the requirements for being able to obtain a Permanent Resident Card (“Green Card”) in the United States, includes proof of lawful entry (inspection) or maintaining lawful immigration status at all times.
Unfortunately, foreign nationals who have entered the U.S. without inspection (e.g. without a valid visa or travel authorization) are ineligible to apply for a Green Card in the United States. Additionally, individuals who entered the U.S. without inspection and have remained in the U.S. for over SIX (6) months are subject to a “permanent bar”, which will prevent them from applying for a Green Card overseas for a set period, which may range from THREE (3) years or TEN (10) years.
For many foreign nationals, remaining in the U.S. with their families, but without valid immigration status or traveling abroad and remaining abroad for several years is incredibly daunting.
Currently, spouses of U.S. citizens may qualify to file Form I-601, Application for a Provisional Unlawful Presence Waiver, which would allow them to obtain a pardon for unlawfully entering the U.S. and remaining in the U.S. for over SIX (6) months. However, the application process would still require the foreign national to depart the U.S. and apply for a visa overseas. The entire process takes approximately FIVE (5) years. During this time, foreign nationals cannot obtain interim benefits like employment authorization, foreign travel authorization, or a Social Security Card.
On June 18, 2024, the U.S. Department of Homeland Security (DHS) announced a program called “New Process to Promote the Unity and Stability of Families.” Recently, this program has been referred to as the “Keeping Families Together” program, and the forms related to this new program were released on August 19, 2024.
Under this program, foreign nationals that entered without inspection or unlawfully can file USCIS Form I-131F, Application for Parole in Place for Certain Noncitizen Spouses and Stepchildren of U.S. Citizens, if they meet certain conditions and remit a filing fee of $580.00.
Upon the approval of this application, the foreign national will be “paroled” for a THREE (3) year period, during which time s/he can:
1. File USCIS Form I-765, Application for Employment Authorization, which will allow the foreign national to receive an Employment Authorization Document (EAD) and Social Security Card, which will expire in THREE (3) years; and/or
2. File USCIS Form I-485, Application to Adjust Status, which will allow the foreign national to receive a Permanent Resident Card (also known as a “Green Card”) and Social Security Card.
What are the specific requirements for spouses of U.S. citizens?
- Be present in the United States without admission or parole. This generally means that you did not enter the U.S. with a visa or other valid travel authorization (e.g. ESTA or a Border Crossing Card);
- Have been continuously physically present in the United States since at least June 17, 2014, through the date of filing your request;
- Have a legally valid marriage to a U.S. citizen on or before June 17, 2024. This means that if your spouse was a U.S. Lawful Permanent Resident (LPR) on or after June 17, 2024, but later naturalized and became a U.S. citizen, you will not qualify;
- Have no disqualifying criminal history and otherwise not deemed to be a threat to public safety, national security, or border security; and
- Submit biometrics and undergo required background checks and national security and public safety vetting.
What are the specific requirements for stepchildren or adopted children of U.S. citizens?
- Have been under the age of 21 and unmarried on June 17, 2024;
- Be present in the United States without admission or parole. This generally means that you did not enter the U.S. with a visa or other valid travel authorization (e.g. ESTA or a Border Crossing Card);
- Have been continuously physically present in the United States since at least June 17, 2024, through the date of filing your request;
- Have a noncitizen parent who entered into a legally valid marriage with a U.S. citizen on or before June 17, 2024, and before your 18th birthday. As for adopted children, the stepchild must have been adopted before the child reached 16 years old;
- Have no disqualifying criminal history and otherwise not deemed to be a threat to public safety, national security, or border security*; and
- Submit biometrics and undergo required background checks and national security and public safety vetting.
The program also allows individuals currently in removal/deportation proceedings, as well as individuals who have already been ordered removed/deported but have not departed the U.S. to apply.
Additionally, individuals who are weary of the U.S. government have been assured that if the application is denied, in general, DHS will not issue a Notice to Appear (NTA) or refer your case to Immigration and Customs Enforcement (ICE) for possible enforcement action solely based on the denial, unless DHS is initiating immigration enforcement proceedings against the foreign national because s/he is considered a priority under the September 30, 2021, Guidelines for the Enforcement of Civil Immigration Law as a threat to national security, public safety, or border security.
DHS stated that an estimated 500,000 noncitizens in the United States are married to U.S. citizens and lack lawful immigration status, and around two-thirds would be eligible for relief under the new initiative. Additionally, DHS estimates that 50,000 noncitizen stepchildren (or adopted children) of U.S. citizens are eligible for this program.
On 8/23/2024, it was announced that several states filed a federal suit seeking to end the program. If the suit is successful, the new parole program could be enjoined nationwide and the government may stop accepting new applications.
On 8/26/2024, Federal Judge John Campbell (“Cam”) Barker of the U.S. District Court for the Eastern District of Texas, who was nominated by Donald Trump, issued an administrative stay of the new program. Judge Barker has ordered the government to cease the approval of new parole documents under the program. According to the order, the government may accept new applications, but cannot approve them. The order also sets forth a schedule for briefing on the Motion for a Temporary Restraining Order, Preliminary Injunction, and Summary Judgment with all briefing due by October 10, 2024.
Foreign nationals that qualify for the program should consider applying as soon as possible.
