A Texas federal court has temporarily halted one of the largest legalization programs in more than a decade, 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. About 500,000 spouses and 50,000 stepchildren would be eligible for the program, according to senior administration officials.
Attorneys general from 16 Republican states, including Texas, Florida and Georgia, have argued that the program is an illegal attempt to circumvent Congress and create a new path to citizenship. The court gave those states two weeks to provide evidence that they would suffer permanent harm if the program were resumed. The court will then decide whether blocking the program in the long term is appropriate.
Those eligible for the new program have still technically been able to apply for permanent residency through their U.S. citizen spouse or stepparent, but to do so would require their families to separate, making the application impractical or 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 return for 10 years if they initially came to the United States without authorization and stayed longer than a year. Immigrants can apply for a waiver of that 10-year ban, but the process is fraught with significant delays.
If the new program is retained, it would essentially allow noncitizen spouses and stepchildren to circumvent that 10-year ban by offering them parole, which protects them from deportation and gives them work authorization.
Although the government will not be able to process applications to the program under the court order, individuals can still file applications in hopes that the program will be allowed to resume.
It’s important to note that this could only happen after an appeals process that could extend beyond the November election. If former President Donald Trump is elected, he would have to scrap the program because it conflicts with his campaign promise to deport undocumented immigrants living in the United States.
What are the chances that the program will survive legal challenges?
Based on past cases involving the legal authority Biden invoked to create the program, it should survive legal challenges, said Jeremy McKinney, a former president of the American Immigration Lawyers Association.
The program relies on the president’s power to issue so-called “in-place parole,” a measure used for decades by Republican and Democratic presidents to allow immigrants to remain in the United States temporarily, as well as on a case-by-case basis for humanitarian reasons or because it would significantly benefit the public. For example, the U.S. government has granted in-place parole to undocumented relatives of U.S. military personnel.
What might help the new program face legal challenges is that it does not create a new path to citizenship for immigrants, but instead relies on parole to make it easier for undocumented spouses to obtain the legal status for which they are already eligible.
“This just makes it easier for mixed-race households to stay together while they go through the legal immigration process,” McKinney said. “This is not a shortcut to the normal system.”
He noted that the Fifth Circuit, the appeals court that could review the case, had already recognized the president’s parole power in 2021, when it called it “a way to remove barriers that stand between an (immigrant) and government benefits.”
“I think the legal landscape looks favorable to these candidates,” he said.
Do undocumented spouses still need to apply?
People eligible for the program can still continue their process.
To be eligible for the new program, spouses must be present in the United States without having been legally admitted or paroled. They must also have lived in the United States for at least a decade and be legally married to a U.S. 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 the age of 21. Their parent must have married a U.S. citizen before the stepchild turned 18.
The decision to apply will ultimately depend on applicants’ willingness to take financial risks while the program is suspended. The application fee is $580 per person, excluding the cost of hiring a lawyer to prepare the application.
“They’re making a financial bet, so to speak,” McKinney said. “And so if money is tight, maybe they’ll want to wait until the litigation is resolved.”
