A federal court in Texas has temporarily put one of the largest legalization programs in over a decade on hold, leaving more than half a million people in limbo.
The program, announced by the Biden administration in June, allows spouses of undocumented Americans to apply for a green card without leaving the country. About 500,000 spouses and 50,000 stepchildren would be eligible for the program, according to senior administration officials.
Attorneys general from 16 Republican states — including Texas, Florida and Georgia — argued that the program was an illegal attempt to bypass Congress and create a new path to citizenship. The court has given those states two weeks to show that they would suffer lasting harm if the program were reinstated. Then the court will decide whether a longer-term freeze on the program is appropriate.
Those eligible for the new program have always technically been able to apply for permanent residency through their U.S. spouse or stepfather, but that would require their families to separate, making the application impractical, if not impossible.
The reason for this is that illegal immigrants must leave the country as part of the Green Card application process. If they originally came to the United States without permission and stayed for more than a year, they would not be allowed to re-enter for ten years. Immigrants can apply for an exemption from this ten-year entry ban, but the process is subject to significant delays.
If the new program goes ahead, non-citizen spouses and stepchildren could essentially circumvent that 10-year ban by being offered parole, which would protect them from deportation and give them a work permit.
While the government cannot process applications for the program due to the court order, individuals can continue to apply in the hope that the program will resume.
Crucially, this may only happen after an appeals process that could stretch beyond the November election. If elected, former President Donald Trump is expected to abandon the program because it contradicts his campaign promise to deport undocumented immigrants living in the U.S.
What are the chances that the program will survive legal challenges?
Because of previous cases involving the legal authority Biden relied on to create the program, it should withstand court challenges, said Jeremy McKinney, former president of the American Immigration Lawyers Association.
The program relies on the president’s power to issue so-called “parole measures,” which have been used for decades by Republican and Democratic presidents to allow immigrants to stay in the United States temporarily. In addition, this is made possible in individual cases for humanitarian reasons or because it would significantly benefit the public. For example, the U.S. government has offered parole measures to relatives of undocumented U.S. soldiers.
What may help the new program in part in the face of legal challenges is the fact that it does not create a new path to citizenship for immigrants, but instead builds on existing parole to make it easier for undocumented spouses to obtain the legal status they already deserve.
“It simply makes it easier for mixed-status households to stay together during the legal immigration process,” McKinney said. “It’s not a shortcut to the normal system.”
He noted that the Fifth Circuit, the appeals court that may review this case, had only granted the president the authority to use local parole in 2021. At the time, it was described as “a means of removing the barriers that prevent an (immigrant) from accessing government benefits.”
“I believe the legal situation is favorable for these applicants,” he said.
Should spouses without residence papers still apply?
Those eligible for the program can still submit their applications.
To be eligible for the new program, spouses must be in the U.S. without legal entry or prior parole. They must also have lived in the U.S. for at least a decade and be legally married to a U.S. citizen by June 17, 2024. And they must “deserve favorable discretion” and not pose a threat to public safety, according to a senior administration official.
To qualify for a stepchild, they must be unmarried and under 21. Their parent must have married a U.S. citizen before the stepchild turned 18.
The decision whether to apply ultimately depends on whether applicants are willing to take the financial risk while the program is on hold. The application fee is $580 per person, plus any fees for hiring an attorney to prepare the application.
“They’re making a financial bet, so to speak,” McKinney said. “If money is tight, they may want to wait until the litigation is resolved.”
