Updates on Parole in Place for Spouses and Access to H1-B for Undocumented Graduates

On June 18, 2024, President Biden announced two impending Executive Orders to expand certain pathways to legal status to limited populations. You can check out our statement on the announcement here. 

While the administration has not released the specific implementation text for the orders, we do have information for certain components (shared below). As we learn more in the coming weeks, I-ARC will release additional guidance and resources for legal practitioners and community members.

One important piece—there is NO early filing for either announcement. No one should file anything with USCIS until a process is formally announced on the Federal Register with a specific start date. Please help your clients and community beware of scams! 

Resources:

Parole in Place for Noncitizen Spouses of U.S. Citizens 

Certain noncitizen spouses married to a U.S. citizen (and their qualifying non-citizen children) may apply for lawful permanent residence without leaving the country under a process called parole-in-place. Previously, anyone who entered the country without inspection would need to leave the United States to apply for legal status, often triggering a bar of up to ten years to re-enter. This change allows certain family members of U.S. citizens (spouses and children) to avoid such bars by applying from within the United States on a case-by-case basis. 

Important to remember

  • This is a discretionary benefit. Even if a person meets all other criteria, it is ultimately on USCIS to decide if the case “merits a favorable exercise of discretion”

  • If USCIS denies a request for parole, they maintain discretion to issue a Notice to Appear (NTA) or refer the case to ICE for possible enforcement action 

    • Potential applicants should seek legal counsel if they expect any challenges related to past criminal or immigration history

To qualify, an individual must:

  • Be legally married to a U.S. citizen as of June 17, 2024

    • Not clear yet if it must be for a minimum time period

  • Have lived in the U.S. for at least ten years as of June 17, 2024

  • Have originally entered the United States without admission or parole

  • Be able to satisfy any other legal requirements 

    • This will likely include criteria like: no disqualifying criminal convictions; no threat to national security and public safety; otherwise eligible to apply for adjustment of status; and merits a favorable exercise of discretion

  • Provide supporting evidence to meet the above criteria

  • Pay a fee

Eligible individuals may also apply for protection for a child who is: 

  • A child of the parole-approved noncitizen

    • The child does not have to be the biological child of the U.S. citizen parent. The child may have a stepchild relationship with the U.S. citizen married to their parole-approved noncitizen parent if the marriage occurred before their 18th birthday

  • Under 21 years old 

  • Unmarried

Approved individuals will be protected from deportation and able to apply for a work permit, similar to other programs like military parole in place or Deferred Action for Childhood Arrivals (DACA). 

The parole and accompanying work permit will last three years, during which the person can apply for legal permanent residency. 

The administration estimates that this action will protect approximately 500,000 spouses of U.S. citizens and 50,000 noncitizen children under 21 whose parent is married to a U.S. citizen.

Expanded Access to Work Visas for Certain Noncitizen U.S. College Graduates

Securing employment-based visas usually requires someone to leave the United States and apply to re-enter. College graduates from U.S. institutions who have accrued more than 180 days of “unlawful presence” in the United States and/or do not have “initial lawful entry” to the United States could face an up to 10-year bar to re-entry. The recent announcement “clarifies and enhances” access to a “D-3 waiver” for such graduates (INA §212(d)(3)). An approved D-3 waiver can waive certain grounds of inadmissibility to the United States—including unlawful presence—and remove the bar for a temporary visa like an H1-B visa for specialty occupations. 

To qualify, an individual must:

  • Have graduated from an accredited higher education institution in the United States

  • Have a high-skilled job offer from a potential employer

  • Be otherwise eligible for an employment-based non-immigrant visa, such as an H1-B visa