President Biden’s New Immigration Initiative

On June 17, 2024, President Biden announced a new program to help undocumented individuals obtain legal residency.  To be clear, the new procedure is not yet in force, and USCIS has indicated that more information will be forthcoming later this summer.  No applications are being accepted at this time.

The Biden plan has two parts: one for spouses of US citizens and the other for employers who wish to hire undocumented but qualified employees.

The first part helps spouses of US citizens.  To be eligible, the spouse has to be present in the United States without admission or parole; has to have been continuously present in the United States for at least 10 years as of June 17, 2024; and has a legally valid marriage to a U.S. citizen as of June 17, 2024 and the spouse must not have any other inadmissibility issues.

The qualifying spouse will then file for parole in place, which if granted, will give the spouse parole for 3 years.  This period provides an opportunity for eligible spouses of U.S. citizens granted parole to file for adjustment of status.

At this time, it is not clear how this all will work out considering there are many individuals who are married to US citizens but have criminal issues or prior deportations or immigration violations.  Hopefully we will get more clarification as to how USCIS plans to handle those situations or if the new program will even apply to such cases.

The second part of the program deals with employment based eligibility.  The program directive will allow many beneficiaries of an Obama-era program known as DACA, or Deferred Action for Childhood Arrivals, to receive employer-sponsored work visas.

Many DACA beneficiaries have the education, training, and even existing employment relationships to qualify for nonimmigrant, or temporary, employment-based visas, such as H-1B “specialty occupation” visas.  They are unable to do so because of their undocumented status.   There is a waiver available for such individuals (INA 212(d)(3)).  However, the current D-3 waiver process is very risky because it requires leaving the U.S., and applicants do not find out until after they have already left if their waiver will be approved.  They could apply for a waiver, leave and then find out that the waiver was denied and now they are barred from returning for a decade, even permanently.

Hopefully, the new procedures will fix this issue by establishing a process where applicants can receive decisions on nonimmigrant waivers before departing the U.S., similar to the provisional unlawful presence waiver (I-601A).    This would reduce the amount of time an individual would need to be outside the U.S., and provide more certainty that they would be granted a visa, and be able to return to the U.S.  This is a common sense approach that is much needed to help DACA recipients.

But, for the time being, we must wait and see what happens.  We also have to hope that there is not a flood of lawsuits challenging the new program which could tie it up for months or even years.


Areg Kazaryan,Esq.   The KazaryanLaw Firm