Immigration Blog

June 19, 2024

Biden’s Immigration Plan for Spouses of United States Citizens (and children of United States Citizens)

a latino mother and father with a female child in between

If a spouse of a United States Citizen has an illegal entry, and a family petition wasn’t filed before May 1, 2001, then the spouse must embark on a 3 step process that takes over 6 years (with the covid backlog) for completion. All the while, there is no work permit. So the undocumented spouse is living in the United States, without a work permit, for over 6 years, while the paperwork is processed and the final step involves leaving the United States for a final interview at a US Consulate abroad.

Biden’s New Plan for Spouses of United States Citizens

The new plan would allow spouses of United States Citizens to apply for their legal permanent resident status in the United States if they meet certain requirements:
1.  The spouse has lived in the United State since June 17, 2014 and can prove it.  Typically USCIS. wants proof of each month for that entire 10 year span.
2.  The spouse was legally married to a United States citizen by June 17, 2024.
3.  The spouse does not have a criminal record (in the past minor crimes have been ok, however, we shall see what the rules require).
4.  The undocumented spouse must not have a legal entry (often a legal entry will allow the spouse to process their immigration paperwork in the United States when married to a United States Citizen).


How will this new process work?

  1. An I-130 family petition may need to be filed first.  The i130 is done to show the married relationship exists between the spouses.  This typically takes 6-9 months for approval.
  2. Parole in Place: Currently this is common for family members of the military, but it seems it will be expanded to Spouses and children of United States Citizens.  With this application, it will need to be proven that the undocumented spouse of the United States Citizen has resided in the United States since June 17, 2014, along with proof of marriage, and a request for discretion.  A criminal background check may also be necessary.  Once this is approved, the undocumented spouse will be issued an i94 for parole in place.  This ‘sort of cures’ the illegal entry and allows the Undocumented spouse to apply for a work permit and their legal permanent resident status in the United States.  Current Parole applications take 6-9 months for a decision.
  3. Adjustment of Status to Legal Permanent Resident:  The third step is to apply for adjustment of status to legal permanent resident status with work authorization.  At times a waiver may be needed for grounds of inadmissibility such as ‘alien smuggling’ or unlawful presence.  We are unsure if there will be any type of waiver for the permanent bar as with current parole cases there is no such waiver.

This will allow for Family Unity, Enhanced Family Stability, Economic Contributions and Community Integration.

The time this process will take should take only 1-2 years and the undocumented spouse will not have to leave the United States to complete their immigration process which is a relief and saves money by not having to travel abroad for an interview.

Because this is a very different process, those with pending I-601a unlawful presence waivers or those with their case set for an interview abroad, will want to think about delays and possible litigation, and new filing fees, once the rule goes into effect.  It will likely depend on how far into the current process you are as to whether you will want to switch over to this new process.

We are advising those that have not filed the family petition i-130 to get started now and have it filed. This should help get a head start on the process before the new rule is final.

Should you have any questions, please call Attorney Diana Bailey for a free telephone consultation. She has 25 years of experience in immigration law and a team that is ready to help you! 503-224-0950.