At the end of April, I analyzed reports that the Biden administration was crafting a “parole in place” (PIP) that would allow aliens illegally present here who are married to U.S. citizens but unable to otherwise seek green cards to gain immigration benefits. A June 18 DHS “Fact Sheet” lays out the parameters of that de facto amnesty, revealing that it is both narrower — but also broader — than initially suggested. (Here is the White House announcement about it.) Any system in which illegal entrants are rewarded to the detriment of foreign nationals doing it “the right way” is a bad one, and that is what the administration is setting up. Expect more than a fair share of fraud that overwhelmed USCIS adjudicators won’t be able to stop, too.
Adjustment. Aliens lawfully admitted to the United States as temporary nonimmigrants or paroled into this country are eligible under section 245 of the Immigration and Nationality Act (INA) to “adjust” their statuses to that of a lawful permanent resident (LPR), that is they are eligible to obtain “green cards” and placed on a path to citizenship.
As with most government programs, however, section 245 adjustment comes with a number of catches. First, of course, the applicant must have been lawfully admitted or paroled into the country — meaning that illegal entrants (generally) aren’t eligible.
Second, the alien must be “eligible to receive an immigrant visa” and that immigrant visa must be “immediately available” at the time the adjustment application is filed.
That is not a significant hurdle for aliens who are lawfully married to U.S. citizens, because as spouses they are “immediate relatives” of those citizens, and thus are not subject to the waiting periods that accompany other immigrant visa categories.
Third, they must be “admissible to the United States for permanent residence”, meaning that they are not inadmissible under any of the grounds of inadmissibility set forth in section 212 of the INA.
In that regard, aliens who have been unlawfully present for long periods of time find themselves in yet another pickle, even assuming they haven’t committed crimes that would render them inadmissible.
That’s because section 212(a)(9)(B) of the INA bars the admission of aliens who have been unlawfully present for more than 180 days and less than one year (for three years after departure), and those who have been unlawfully present for more than one year (for 10 years after departure).
There is, however, a waiver available for aliens who are subject to those so-called “three- and 10-year bars”, in section 212(a)(9)(B)(v) of the INA. It states, in pertinent part, that the DHS secretary has “sole discretion” to waive those bars:
in the case of an immigrant who is the spouse or son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the [DHS secretary] that the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien. [Emphasis added.]
At the end of FY 2023, there were more than 133,000 such I-601A “Applications for Provisional Unlawful Presence Waivers” pending before USCIS — a fiscal year in which the agency completed fewer than 13,000 I-601As. That’s quite the backlog.
Why aren’t those applications being adjudicated more quickly by an administration that purports to prioritize “family reunification”? Because, as I explained in early May, Biden’s DHS is more focused on cranking out work permits for illegal entrants than in facilitating legal immigration (not that I-601A waivers are “legal immigration”, per se).
In any event, even after those aliens obtain their I-601A waivers, they must still travel abroad to a U.S. consulate to complete visa processing and reenter with their immigrant visas. Theoretically, however, that’s not a big deal, because in-country adjustment has always been considered an exception to the “consular processing” rule.
Note, by the way, that I used the modifier “generally” in explaining that unlawful entrants are not eligible for adjustment of status. Section 245(i) of the INA does permit them to adjust their status regardless of their illegal entries, however it (again generally; there are a lot of caveats) only applies to aliens who were beneficiaries of visa petitions filed on or before April 30, 2001.
That date is not simple legislative inertia. Proposals were introduced in the early 2000s to move that date forward, only to be defeated in Congress. And that is where the so-called “245(i)” date has been ever since.
“42B Cancellation”. Adjustment is not the only avenue of relief for illegal alien spouses of U.S. citizens. There’s also “cancellation of removal and adjustment of status for certain nonpermanent residents”, a form of relief created by Congress and codified under section 240A(b) of the INA.
It’s commonly referred to as “42B cancellation”, after the form EOIR-42B aliens use to apply for that relief, and applicants who receive it are also given green cards and placed on a path to citizenship.
It, too, comes with a number of exceptions, most notably that 42B cancellation is only available to aliens who have been present here for 10 years or more prior to filing that application (and are in removal proceedings, as I will explain below).
In addition, to be granted 42B cancellation, the alien must establish that his or her removal “would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence” (emphasis added).
If “exceptional and extremely unusual hardship” sounds like a heavier burden than the “extreme hardship” showing required by applicants for I-601A waivers, that’s by design.
Such 42B cancellation replaced a similar form of relief for aliens unlawfully present, which had been provided for in former section 244 of the INA and known as “suspension of deportation”. Suspension only required aliens to show that they had been here for seven years and that their deportation would result in extreme hardship to themselves or a qualifying U.S. citizen or LPR relative.
To say that this “extreme hardship” standard for suspension was watered down over the years would be an understatement. In its 1996 decision in Matter of O-J-O-, for example, the Board of Immigration Appeals granted suspension to a 24-year-old Nicaraguan national who, among other equities was “an avid fan of softball and baseball” and “participate[d] as a player in local softball and baseball leagues”.
That “baseball fan” standard was likely too much for Congress to take, as it specifically referenced the case in the conference report for the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) to explain why it was replacing suspension of deportation with 42B cancellation in the INA.
In addition — and this is important — 42B cancellation can only be granted by an immigration judge to an alien respondent in removal proceedings (aliens have fought to get into proceedings to apply for the relief), and grants are capped at 4,000 per annum, to assure that overly sympathetic judges don’t grant it too freely, a la the Board in Matter of O-J-O-.
“Fix 96”. Shortly after IIRIRA was passed, a “Fix 96” movement arose among immigrant advocates to roll back the restrictions Congress had placed on relief for removable aliens. Various congressional efforts to do so, however, were unavailing.
The administration apparently realized it wasn’t going to have much success pushing forward such a legislative fix even during the last Congress, when the president’s fellow Democrats controlled both chambers. Which explains the latest PIP plan, and brings me to the DHS fact sheet, captioned “DHS Announces New Process to Promote the Unity and Stability of Families”.
“New Process”. That fact sheet reveals that the administration’s “new process” for families is premised upon PIP, as I predicted it would be back in April.
If you want to understand all of the legal issues with PIP generally, I refer you back to that piece. Suffice it to say that parole in place rests upon a very slim legal reed, as Congress has only recognized that process as appropriate for relatives of U.S. service members. Expect legal challenges to be filed directly.
In any event, only alien spouses who have been continuously present in the United States for 10 years as of June 17, 2024, will be eligible to apply for this new Biden PIP, and they must have been lawfully married to a U.S. citizen on or before that June 17, 2024, date.
Given this 10-year continuous presence requirement, the Biden PIP is narrower than had originally been suggested. That said, such a requirement is an invitation to fraud as spouses of U.S. citizens who have been here for briefer periods will start scrambling to collect (and create) documents to show longer terms of presence — and to cover up subsequent departures.
That’s especially true given that the DHS fact sheet reveals an alien stepchild of a U.S. citizens whose alien parent is eligible for PIP benefits can apply for PIP under this proposal as well, provided they came illegally and that such familial relationship existed prior to that June 17, 2024, date.
That is a greater inducement to fraud because the kids will only be eligible for benefits if their alien parents are eligible. There are likely any number of alien spouses who could take the benefit or leave it, but who would be more inclined to apply fraudulently to give their kids a shot at PIP.
That “stepchild PIP” carve-out did not appear in prior reports on what the White House was cooking up, and thus the plan is also broader than was initially suggested.
The 550,000 Amnesty and Potential Fraud. According to the DHS fact sheet:
DHS estimates that approximately 500,000 noncitizen spouses of U.S. citizens could be eligible to access this process; on average, these noncitizens have resided in the United States for 23 years. Approximately 50,000 children of these spouses also will be eligible for this process.
Add it up, and that’s an amnesty for 550,000 aliens who are unlawfully present in the United States, assuming those estimates are correct (and they seem pretty accurate to me).
Of course, that does not include the aliens who will attempt to apply for benefits fraudulently, and DHS’s ability to control fraud in this program (assuming it’s not shut down in the courts) will only be as good as USCIS’s ability to screen those applications for bogus claims in the adjudication process.
As USCIS’s deficient I-601A processing effort described above reveals, the agency’s performance and its results up to this point have not been promising.
USCIS is already pushing applications for legal immigration benefits to the back burner to grant work authorization to the tens of thousands of parolees the administration is funneling into the country monthly now, as I explained in May.
There were more than 777,000 such “I-765” employment authorization applications pending at the end of FY 2023, and that’s after USCIS granted work cards to more than 1.2 million other aliens last fiscal year. The agency just doesn’t have the resources or the bandwidth to take more than a cursory glance at 550,000 new PIP requests.
And if you are a U.S. citizen waiting for USCIS to adjudicate the immediate-relative visa petition for your spouse or fiancée who has been waiting patiently abroad, that wait is going to get a whole lot longer.
The Biden administration knew that it couldn’t “Fix 96” — the 1996 reforms that Congress placed on the legal immigration system to deter fraud, abuse, and illegal entries — through the legislative process, so it’s assuming questionable administrative powers to do so. Any system in which illegal entrants are rewarded and legal beneficiaries suffer is not a good one, but that’s where the administration is today.