Based upon 2019 data, the Migration Policy Institute reports that over 11 million unauthorized, or undocumented, people from other countries reside in the United States. An estimated 10,513,000 are at least age 15 years old. Roughly one in every eight undocumented people aged 15 and older demographic are married to a United States citizen.
Marriages between a United States citizen and noncitizen spouse, especially undocumented spouses, raise thorny legal issues. These couples face the dim prospects of separation for long time periods. Below, we explore a Biden Administration initiative that could offer relief and citizenship for up to 500,000 non-citizen spouses who do not have lawful status in the United States.
How Does a Spouse Become a Citizen in General?
For a noncitizen with permanent legal residence in the United States, marriage to a United States citizen provides a pathway to citizenship. The noncitizen spouse must be married to and live as a spouse of the United States citizen for three consecutive years before applying for citizenship. During that three-year period, the applicant must log 18 months of presence in the United States. This process requires that the non-citizen spouse first apply for and become a permanent legal resident.
Can Undocumented Spouses Become United States Citizens?
A noncitizen spouse who does not have legal residency in the United States could obtain such status and then ultimately achieve citizenship. Under existing law, such applicants would have to first leave the United States. Estimates on the time to process an application can range from a year to over four years, depending on what source you might consult or rely upon. This circumstance creates the prospect of married people spending considerable time – perhaps years – apart.
How Can Undocumented Spouses Become Permanent Residents and Then Citizens Without Leaving the United States?
The Biden Administration’s new program seeks to enhance its promotion of “family unity” by removing for certain noncitizen spouses the requirement to leave the country to apply and await a decision. Those who seek this route to residency and citizenship must meet many of the standards that apply to those seeking permanent residence and citizenship in the United States.
Not Be Already Admitted or Paroled
Noncitizen spouses who are already present under legal documentation do not need this move by the Biden Administration.Immigrants gain lawful entry and presence into the United States either through “admission” or “parole.” Immigration officers admit noncitizens for residency in the United States through a process of vetting and inspection. Spouses and children of United States citizens are eligible for admission, and these may apply for permanent residence and ultimately citizenship. Other categories of admittees include:
*Immigrants in or near the top of fields such as athletics, science, math, professions, education, entertainment, and arts
*Refugees or those seeking asylum from persecution
*Those from countries with low levels of immigration to the United States, under an immigration diversity program.
You commonly associate “parole” with the release of a convict from prison before the end of the sentence. In immigration law, a “parolee” obtains permission to remain temporarily in the United States. Immigration officers grant parole to applicants for humanitarian or other extraordinary reasons. Often the parolee has a pending asylum request and there exists a “credible fear” that the applicant will be tortured or persecuted if the applicant does not remain in the United States while the underlying application is under consideration.
Residency
Applicants must have lived in the United States continuously for at least ten years as of June 17, 2024. Those who came to the United States after June 17, 2014, do not qualify under this program.
Marriage
President Biden’s plan requires that a spouse be in a “valid marriage” as of June 17, 2024. Unlike the residency requirement, there exists no minimum duration of the marriage. In light of the United States Supreme Court’s invalidation of the Defense of Marriage Act, a person could apply for permanent residency based upon marriage to a same-sex citizen spouse. Same-sex marriages would qualify under this program. Note that, in 2015, the United States Supreme Court declared in Obergefell v. Hodges that same-sex marriages were entitled to recognition under the Fourteenth Amendment to the United States Constitution.
Clean Criminal Record
The nonresident spouse must also have a record without “disqualifying” criminal convictions. Murder and “aggravated” felonies permanently disqualify a noncitizen from lawful residence in the United States. The roster of “aggravated felonies” and other crimes that might derail a parole application includes:
*Rape
*Sexual abuse of a minor
*Illicit trafficking in drugs (“controlled substances,” such as cocaine) and firearms
*Child pornography
*Fraud, deceit, or tax evasion
*Smuggling aliens into the United States
*Perjury
*Bribing witnesses
*Obstruction of justice
*Racketeering
*Illegal gambling
*Prostitution
*Possessing marijuana greater than 30 grams
*Possessing other controlled substances
Depending on the specifics of the offense, the noncitizen may have a permanent or temporary ban from residency in the United States.
“Convictions” arise from guilty verdicts, guilty pleas, “no contest” (nolo contendre) pleas, and acknowledgments that the evidence is sufficient for a finding of guilt. There must also exist a judgment imposing imprisonment, fine, penalty, or probation. Suspended sentences to jail or prison also count as convictions.
Not a Security Risk
Those who pose risks to national security and public safety will not receive entry under this program. The United States Customs and Immigration Service may treat as national security risks those who have:
*Kidnapped, assassinated, hijacked aircraft or other transportation vessels, or used biological, chemical, firearm, or other dangerous devices;
*Endorsed or advocated for terrorist acts
*Trained with terrorist organizations
*Represent or have membership in a terrorist organizations
*Been married to or a child of someone who committed a terrorist act within five years of the application for entry or parole
How Do Children Qualify Under the Biden Program?
Non-citizen stepchildren of US citizens also qualify for “Parole in Place” under the new regulations. The Department of Homeland Security estimates roughly 50,000 undocumented children may benefit from this initiative. Undocumented children of noncitizen spouses who qualify for parole may themselves obtain temporary authorization to remain in the United States.
To become eligible, such a child must have a “qualifying stepchild relationship” with the United States citizen spouse as of June 17, 2024. Immigration law requires that the stepchild be unmarried and under the age of 18 years old at the time the United States citizen spouse marries the noncitizen spouse (who is the natural parent of the child seeking parole).
Martin Gasparian is the founder of Maison Law, a California Personal Injury Law Firm. Martin is a graduate of Georgetown University Law School and has been practicing law in California 2004. His practice focuses on helping injury victims know their rights and recover just compensation.
