Biden puts noncitizen spouses on a path to permanency

Marielena Hincapié’s phone has buzzed almost nonstop for the past several days.

“As soon as news started leaking about a possible policy change, it has been so hectic,” she said. An immigration fellow and visiting scholar at Cornell Law School, Hincapié advised the Biden administration on a policy announced Tuesday that creates a pathway to legal status for spouses of U.S. citizens who are living in the country unlawfully.

“​​What the president has done with today’s historic announcement is allowing families to stay together and creating a process by which they will be able to apply for a green card,” said Hincapié.

The executive action also streamlines the employer-sponsored visa process for foreign-born college graduates who entered the United States illegally as children and who want to continue working here.

While the executive action prioritizes family unity and allows illegal immigrants to get on the right side of the law, immigration experts say it’s a haphazard solution to a problem only Congress can solve.

In our interview Tuesday morning, Hincapié, who is a naturalized citizen from Colombia, told me she couldn’t talk for long because she was heading to the White House, where President Joe Biden explained the policy in further detail. She wore a pastel yellow pantsuit, a hand-me-down from one of her sisters who had it made in Colombia.

“The Statue of Liberty is not some relic of American history,” Biden said during the announcement. “It stands, still stands, for who we are. But I also refuse to believe that for us to continue to be America that embraces immigration, we have to give up securing our border. They’re false choices. We can both secure the border and provide legal pathways to citizenship.”

The White House event also commemorated the 12th anniversary of Deferred Action for Childhood Arrivals (DACA), which established a two-year renewable status that shields people who came to the United States illegally as children from deportation. It follows another recent White House action cracking down on asylum-seekers who cross the border illegally.

Under the policy announced Tuesday, noncitizens who have lived in the United States for at least 10 years and are married to U.S. citizens can apply for permanent residency, or a green card, without having to leave the country. The offer is open to any noncitizen spouse of a U.S. citizen regardless of his or her current legal status. (Legal immigrant spouses likely would not participate since they already have the option to apply for a green card without leaving the United States.) The executive action applies to roughly 500,000 spouses of U.S. citizens.

To begin the process, a spouse must apply for a “parole in place” status that includes work authorization. Once on parole, the immigrant has three years to apply for a green card.

“A lot of people in the United States think that that’s already possible, and it’s not,” said Hincapié.

Currently, illegal immigrants who are married to U.S. citizens must leave the United States for 10 years and apply for permanent residency at a U.S. consulate or embassy before they can reenter. The rule stems from a 1996 law that says anyone who lives in the country for more than one year without permission triggers 10-year bar on reentry.

“If they have children, that’s a nonstarter,” Hincapié said. “And so what it means is that so many families … have not come forward to apply for a green card because they don't want to be separated from their loved ones.”

Previous administrations have used “parole in place” to provide a legal pathway to permanency for noncitizen U.S. military members and their families. Like other uses of parole, it is granted on a case-by-case basis for “urgent humanitarian reasons or significant public benefit.”

“It is a discretionary grant—the government can decide not to give it to anybody for any reason,” said Theresa Cardinal Brown, the director of immigration policy for the Bipartisan Policy Center. That means the policy isn’t a blanket legalization or automatic path to citizenship. Unlawful spouses must come forward and apply for the status before they can pursue permanent residency.

Opponents of the change worry it will incentivize illegal immigration and contribute to the U.S. Citizenship and Immigration Services’ logjam of cases. In a recent statement, House Speaker Mike Johnson called the new process an amnesty plan that “will only incentivize more illegal immigration and endanger Americans.”

Lora Ries, the director of the Border Security and Immigration Center at the Heritage Foundation, said in an emailed statement that the president is again bypassing Congress to “abuse his parole authority and wave hundreds of thousands illegal aliens into permanent residency in the United States.” Along with illegal immigration, Ries contended the decree will encourage marriage fraud while adding to the immigration case backlog and extending the green card wait for legal immigrants.

Matthew Soerens is the vice president of advocacy and policy for World Relief. Soerens, who used to practice immigration law, acknowledged critiques that characterize the change as an amnesty plan. He said he doubted the policy would spark a significant change in the number of illegal immigrants since it only applies to those who have lived in the United States for at least 10 years as of June 17.

“Our preferred policy is to have people pay a penalty for their violation of immigration law,” he said. “That’s something that Congress would have to do.”

Soerens pointed to the Dignity Act, a bipartisan bill which would give the more than 11 million illegal immigrants residing in the United States access to legal status if they paid a restitution fine. Rep. Maria Elvira Salazar, R-Fla, the act’s co-sponsor, said the bill reflects “the Biblical principles of dignity and redemption.” So far, the act has not made it out of the House of Representatives.

“I agree with people who think this is a less-than-ideal process, and it should be done legislatively, not by the executive branch,” Soerens said. “I would plead with the Congress, Republicans and Democrats alike, whether they like the policy or not to go ahead and pass legislation.”

Kathleen Bush-Joseph, an immigration lawyer and policy analyst for the Migration Policy Institute, said opponents will likely challenge the executive action in court. Last February, Texas and 19 other Republican-led states sued the administration over a parole program Biden created for 30,000 immigrants per month from Cuba, Nicaragua, Venezuela, and Haiti. They argued the president was using parole en masse, rather than on a case-by-case basis, and creating a de facto visa system.

“A lawsuit challenging the process could mean that the process actually is never implemented, as happened with DAPA,” Bush-Joseph said. Obama established Deferred Action for Parents of Americans to protect the illegal immigrant parents of American citizens from deportation, but a court challenge prevented the action from going into effect.

But Bush-Joseph pointed to the language of the action. It’s a process, not a program. “They say that because they are very cognizant of the fact that these need to be individual applications evaluated on an individual basis,” she said.