A federal court in Texas has put one of the biggest legalization programs in over a decade on hold temporarily, leaving more than half a million people in limbo.
The program, announced by the Biden administration in June, allows undocumented spouses of Americans to apply for a green card without having to leave the country. Approximately 500,000 spouses and 50,000 stepchildren would be eligible for the program, according to senior administration officials.
The attorneys general of 16 red states — including Texas, Florida, and Georgia — argued that the program was an illegal attempt to circumvent Congress and create a new pathway to citizenship. The court has given those states two weeks to provide evidence that they would be permanently harmed if the program resumes. Then, the court will rule whether blocking the program on a longer-term basis is appropriate.
The individuals eligible for the new program were always technically able to apply for permanent residence through their US citizen spouse or stepparent but to do so, their families would have to separate, making applying impractical, if not impossible.
That’s because undocumented immigrants would have to leave the country as part of the green card application process. They wouldn’t be legally allowed to reenter for 10 years if they had initially come to the US without permission and stayed for more than a year. Immigrants can apply for waivers of this 10-year bar, but the process faces major backlogs.
If upheld, the new program would essentially allow noncitizen spouses and stepchildren to bypass that 10-year bar by offering them parole, which protects them from deportation and gives them work authorization.
While the government won’t be able to process applications to the program under the court’s order, individuals can still file applications in the hope that the program will be allowed to resume.
Critically, that might only happen after an appeals process that could extend beyond the November election. If former President Donald Trump is elected, he is expected to scrap the program because it conflicts with his campaign promise to deport undocumented immigrants living in the US.
What are the chances that the program survives court challenges?
Based on previous cases involving the legal authority Biden invoked to create the program, it should survive court challenges, said Jeremy McKinney, former president of the American Immigration Lawyers Association.
The program relies on the president’s power to issue what’s called “parole in place,” which has been used for decades by both Republican and Democratic presidents to allow immigrants to remain in the US temporarily, as well as on a case-by-case basis for humanitarian reasons — or because it would significantly benefit the public. For instance, the US government has offered parole in place to undocumented relatives of US service members.
Part of what could help the new program as it faces legal challenges is the fact it isn’t creating a new path to citizenship for immigrants, but instead relies on parole in place to make it easier for undocumented spouses to obtain legal status that they are already eligible for.
“All it does is make it easier for mixed-status households to stay together while they are going through the legal immigration process,” McKinney said. “This is not a shortcut of the normal system.”
He noted that the Fifth Circuit, the appeals court that might review this case, previously recognized the president has parole-in-place authority as recently as 2021 when it called it a “means of removing bars that stand between an [immigrant] and government benefits.”
“I do think that the legal landscape looks favorable to these applicants,” he said.
Should undocumented spouses still apply?
Those eligible for the program can still move ahead with their applications.
To be eligible for the new program, spouses must be present in the US without having been legally admitted to the US or previously provided parole. They must have also lived in the US for at least a decade and have a legally valid marriage to a US citizen as of June 17, 2024. And they must “merit a favorable exercise of discretion” and not pose a threat to public safety, according to a senior administration official.
For stepchildren to be eligible, they must be unmarried and under 21. Their parent must have married a US citizen before the stepchild turned 18.
The decision of whether to apply might ultimately come down to whether applicants are willing to take on the financial risk while the program is on hold. The application fee is $580 per person, excluding any fees associated with hiring a lawyer to prepare the application.
“They are making a financial bet, so to speak,” McKinney said. “And so if money is tight, maybe they want to wait until the litigation is resolved.”