USCIS has announced that the Executive Action program by President Biden to “promote the unity and stability of families.” Mr. Biden’s initial announcement would allow spouses and children of US citizens who entered the country without inspection to apply to remain in the United States and be granted a legal entry, thus paving the way for them to apply for a green card without leaving the United States. The program would not benefit those that entered the United States lawfully or with a visa and have merely overstayed their allotted time.
While the public and practitioners alike received little information about the implementation of this new program, USCIS has begun to provide more specifics as to a candidate’s eligibility for the process. To be considered for a discretionary grant of parole, on a case-by-case basis, under this process, you must:
- Be present in the United States without admission or parole;
- Have been continuously present in the US for at least 10 years as of June 17, 2024;
- Have a legally valid marriage to a US citizen as of June 17, 2024;
- Not have any disqualifying criminal history or otherwise constitute a threat to national security or public safety; and
- Otherwise merit a favorable exercise of discretion.
According to reports, applicants will only be eligible to submit their applications through the MyUSCIS.gov online portal, but will not be able to link their attorney’s accounts to their filings. USCIS will require a $580 filing fee per applicant.
While litigation over the legality of Mr. Biden’s executive action is almost assured, if successfully implemented, this program would permit thousands of individuals that entered the country unlawfully to obtain the necessary documentation to apply for permanent residency in the United States. Notably, Mr. Biden’s proposal is markedly different from his predecessor, Barack Obama’s, Deferred Action for Childhood Arrivals (DACA) program. Foremost, parole as a concept is rooted in statute – the Immigration and Nationality Act §212(d)(5) states that “[t]he Attorney General may…in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States…” Unlike President Obama’s DACA program, which was truly a creation of the executive branch, parole was created by Congress and as is widely known in immigration circles, Congress has plenary power to regulate immigration, meaning Congress’ authority is absolute.
Modeling his Executive Action based upon existing statute provides Mr. Biden with strong legal insulation against attack – by using an authority created by Congress and given to the President, Mr. Biden has wisely formulated his executive action to follow the powers granted to him under statute. In short, unlike DACA, Mr. Biden isn’t simply making it up. Republican Attorneys General successfully sued to prevent USCIS from accepting new DACA applications, arguing that the Executive Branch had exceeded its authority by circumventing the will of Congress; simply stated, if Congress wanted to create the DACA program, it would have done so and by not passing a statute cementing DACA as law, Congress acted with intention. Mr. Biden can use this argument to his benefit by arguing that Congress has passed a statute and that he is merely using his power as President to implement Congress’ will.
Undoubtedly, the outcome of the upcoming election will surely dictate the fate of Mr. Biden’s executive action with the newly minted Democratic-nominee Vice President, Kamala Harris, assuredly keeping the program intact while former-President Trump’s intentions remain unclear. The former president has made immigration a centerpiece of his campaign and has largely railed against pro-immigrant programs, instead promising to enact mass deportations. While the specifics of Mr. Trump’s proposal have not been provided (i.e. How would such a massive program be funded? Where would deportees be held while awaiting removal?), the enormous logistical challenges of implementing such a program would constitute a Herculean undertaking for any federal bureaucracy. Regardless, immigration will likely continue to be top-of-mind for Americans as the election hits its stretch run. With early voting scheduled to start in some states as early as September 20th, the policy prescriptions for fixing our immigration system continue to hang in the balance while America sorts out who will sit in the Oval Office and the halls of Congress for the years ahead.