What are the proposed actions?

On June 18, 2024, President Biden announced a new process for certain noncitizen spouses of U.S. citizens to apply for lawful permanent residence without having to leave the United States. He also announced a pathway that would allow individuals, including DACA recipients and other Dreamers, who have earned a degree at an accredited U.S. institution of higher education in the United States, and who have received an offer of employment from a U.S. employer in a field related to their degree, to be able to more quickly receive work visas. Read the Department of Homeland Security (DHS) Fact Sheet here and the announcement on the U.S. Citizenship and Immigration Services (USCIS) website here.

What is the process for spouses of U.S. citizens?

DHS will establish a new process to consider, on a case-by-case basis, requests for undocumented spouses of U.S. citizens who have been continuously physically present in the United States for 10 years or more; have no disqualifying criminal convictions; do not pose a threat to national security and public safety and pass vetting; are otherwise eligible to apply for adjustment of status; and merit a favorable exercise of discretion. If paroled, these spouses will be able to apply for lawful permanent residence without having to leave the United States and be processed by a U.S. consulate overseas.

Who is eligible?

To be considered on a case-by-case basis for this process, an individual must:   

• Be present in the United States without admission or parole; 

• Have been continuously present in the United States for at least 10 years as of June 17, 2024; and 

• Have a legally valid marriage to a U.S. citizen as of June 17, 2024. 

In addition, individuals must have no disqualifying criminal history or otherwise constitute a threat to national security or public safety and should otherwise merit a favorable exercise of discretion.

Noncitizen children of potential applicants may also be considered for parole under this process if they are physically present in the United States without admission or parole and have a qualifying stepchild relationship with a U.S. citizen as of June 17, 2024.

What is the process for Dreamers or DACA recipients?

DHS will join the Department of State in an effort to more efficiently facilitate certain employment-based nonimmigrant visas for eligible individuals, including Deferred Action for Childhood Arrivals (DACA) recipients and undocumented noncitizens, who have graduated from an accredited U.S. institution of higher education and who have received an offer of employment from a U.S. employer in a field related to their degree. In essence, these actions would streamline D-3 waiver applications for DACA recipients and Dreamers who wish to obtain a work visa (such as an H-1B) in the United States while avoiding the 3- and 10-year bars.

What are the 3- and 10-year bars?

The so-called 3- and 10-year bars are immigration penalties that disqualify noncitizens who have resided in the United States without authorization for more than 180 days from applying for a U.S. visa. Established by legislation in 1996, it was intended to reduce the growing unauthorized immigrant population by imposing new and increased penalties for immigration offenses. Both bars are applied in the same manner; the only difference is length of the penalty, which varies depending on the amount of time an individual unlawfully has remained in the U.S.

How would the new process help Dreamers or DACA recipients?

The Biden Administration proposes a more streamlined processing of the D-3 waiver which can excuse – on a case-by-case basis – a wide range of grounds of inadmissibility to the United States, including the 3- and 10-year bar. Under the waiver, Dreamers with a U.S. college degree and a job offer from a U.S. employer in a field related to their degree will become eligible – on a case-by-case basis – for an expedited process to obtain a work visa in the United States.

How can one apply for this benefit?

Before an applicant can apply for an H-1B or other temporary worker visa, U.S. Citizenship and Immigration Services (USCIS) must generally first approve a Petition for a Nonimmigrant Worker, Form I-129. Individuals may apply for a nonimmigrant visa after USCIS has approved the petition. There are several steps in the visa application process, including the completion of Form DS-160 and schedule an appointment for their visa interview at any U.S. Embassy or Consulate. Applicants who are denied a visa will generally be notified by the consular officer of the basis for the ineligibility, and whether they are eligible for a waiver of their ineligibility.  Waiver requests are adjudicated by the Department of Homeland Security, U.S. Customs and Border Protection’s Admissibility Review Office, based on a recommendation from the Department of State. 

What else should I know?

These programs are not yet accepting applications. The programs are expected to launch by the end of the summer after a Federal Register notice detailing the application process and other information is published. Applications submitted prior to the start date listed in the notice will be rejected.

Stay tuned as we keep you updated on this new development. Follow us on Instagram, Twitter, Facebook, LinkedIn and Tumblr, for up-to-date immigration news and to keep updated.

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