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How Biden’s Executive Action Aims To Provide A Pathway To Citizenship For Some Immigrants

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A new Biden administration policy announced Tuesday will provide roughly half a million immigrants, who are married to American citizens but lack legal status in the United States, a pathway to citizenship for themselves and their children.

This policy is one of President Joe Biden’s most sweeping immigration initiatives, heavily lobbied for by immigrant advocates.

Here’s a look at the new policy, who might benefit, and how it works:

How Did Things Work Before?

Under U.S. immigration law, if an American marries a non-citizen living in the United States, the spouse can generally apply for long-term permanent residence — a green card. However, if the spouse has been living in the U.S. illegally for a long time, the process becomes much more complicated.

Typically, the spouse must leave and apply from their home country. Depending on how long the person has lived in the U.S. without authorization, they could be required to stay abroad for three to ten years before applying to return. They can seek a waiver to avoid waiting that long abroad, but getting a waiver currently averages about three and a half years.

The process involves going abroad, applying at a consulate where waits can be extensive, and being permitted back into the U.S. Facing the prospect of leaving their families in America for a lengthy and uncertain process, many choose to stay and live in the shadows.

How is Biden Changing Immigration Policy?

Under the new policy, many spouses without legal status can now apply for lawful permanent residence without leaving the U.S., eventually getting a path to citizenship. However, it’s not a blanket approval.

To be eligible, individuals must have lived in the U.S. for at least 10 years, not pose a security threat, and have been married by June 17, 2024. Applications must be submitted to the Department of Homeland Security, which will consider them on a case-by-case basis. Immigrant spouses must not have been previously admitted or paroled into the country.

Applicants will be vetted for previous immigration history, criminal history, and potential fraud. Once Homeland Security approves an application, the individual will have three years to apply for permanent residency and could receive work authorization for up to three years.

According to immigration advocacy organization FWD.us, about 1.1 million immigrants without legal status are married to American citizens in the United States. The administration estimates that roughly half that number — about 500,000 — could be eligible for this program, along with about 50,000 of their children.

On average, these spouses have lived in the United States for just over two decades. A senior administration official mentioned that they expect the majority of those benefiting from the program will be from Mexico.

How Does This Fit in with Biden’s Other Immigration Policies?

The Biden administration has pursued a two-pronged strategy on immigration and border security over the past year and a half.

On one hand, Biden has made it more difficult to qualify for asylum at the southern border and has intensified removals of those who don’t qualify to stay. Immigration advocates criticized Biden’s decision to cut off asylum processing after arrivals at the southern border exceeded a certain number per day.

On the other hand, the administration has taken several steps to admit people into the country. For instance, a program created last year allows people from Cuba, Haiti, Nicaragua, and Venezuela to come to the U.S. if they have a financial sponsor, pass a background check, and fly into a U.S. airport. As of the end of April, 434,800 people have arrived through that program from those four countries.

Many advocates have pushed the administration to do more for immigrants who have lived in the U.S. illegally for decades.

What’s Changing in the Program for ‘Dreamers’?

Separate from the policy for migrant spouses, the administration also announced changes to help those in the Deferred Action for Childhood Arrivals (DACA) program qualify more easily for long-established work visas.

In 2012, the Obama administration offered deportation protections and temporary work permits to people brought illegally to the U.S. by their parents as children, often known as “Dreamers.” Many Dreamers are now parents themselves.

Many companies employing DACA recipients can apply for them to get a work visa, which is more stable and provides a pathway to permanent residence. However, to get the work visa, the DACA recipient must travel abroad, apply, and get a waiver to reenter the U.S. This waiver process is slow and offers little guidance, deterring employers and DACA recipients from trying it.

What’s Next?

The Department of Homeland Security must produce guidance on how the spousal program will work. The program will take effect by the end of summer, President Joe Biden announced during a ceremony on Tuesday.

The U.S. Citizenship and Immigration Services, an agency within the Department of Homeland Security, will process all the applications. This agency has historically struggled with funding as it works to reduce backlogs and wait times.

Republicans and immigration opponents have intensely criticized the proposal, and opponents are almost certain to sue in an attempt to stop it.

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