Blog

By Ava Benach

On Thursday November 7, 2024, two days after the Presidential election that swept Donald Trump back into the Presidency, U.S. District Court Judge J. Campbell Barker issued an order declaring that the U.S. government did not have legal authority to grant parole in place to the spouses of U.S. citizens. Judge Barker’s order effectively ends the Parole in Place program that had brought so much hope to so many.

The End of the Biden Parole in Place Program

The Biden parole in place program was intended to provide a way for the undocumented spouses of U.S. citizens to seek residence in the U.S. without having to return to the embassies in their home countries to seek a visa. Shortly after the program opened in August, 17 states, led by Texas filed suit in U.S. District Court in the Eastern District of Texas. Those states chose this court in Tyler, Texas in the hope of finding a friendly judge and, boy, did they get one. Judge Barker found the program unlawful and prohibited the defendants (the US government) from implementing it.

Appeal Prospects and the Incoming Administration

While it is true that the U.S. government can appeal Judge Barker’s decision, the appeal is likely to take more than two months. In just about 70 days, the Trump team will take over the Department of Justice and Department of Homeland Security. They are strongly opposed to this program and will seek to dismiss the appeal. That will end the litigation, leaving Judge Barker’s decision standing. At this point, it is safe to consider the Biden Parole in Place Program for Undocumented Spouses of U.S. citizens dead.

Alternative Options: Pivoting to the I-601A Provisional Waiver

Rather than litigate the merits of Judge Barker’s decision, we want to offer some generic advice. Now, this advice does not apply to all and anyone reading this should consult a lawyer to understand how this development impacts their lives.

Many of the people that qualified for PIP also qualify for consular processing of an immigrant visa after obtaining an approved I-130 immigrant petition and an I-601A provisional waiver of unlawful presence in the U.S. People who were seeking PIP can pivot to working on an I-601A so that they can go to the U.S. embassy in their home country and obtain an immigrant visa and return as residents. Here are some important considerations:

Key Considerations for the I-601A Provisional Waiver

• Before you can file an I-601A provisional waiver, you will need an approved I-130 or I-140 immigrant petition.
• You will also need to pay the initial fees to the National Visa Center to start the consular processing part of the case.
• The I-601A provisional waiver only waives or “pardons” unlawful presence, meaning time spent in the U.S. after the period of authorized admission has ended or all time after entering without inspection.
• The I-601A DOES NOT WAIVE other ineligibility such as criminal convictions, deportations, illegal re-entry, fraud or misrepresentation, or smuggling.
• Anyone thinking about filing an I-601A provisional waiver should consult with an attorney to identify any other potential ineligibility.
• I-601A provisional waivers take a long time to be decided. The time right now is about three years. There is no reason to believe that they will get any faster.
• I-601A provisional waivers do not provide any status or benefit while they are pending.
• I-601A provisional waivers are a lot of work to document extreme hardship to U.S. citizen or permanent resident spouses or parents. U.S. citizen or resident children do not count in the hardship consideration.

The Future of the I-601A Provisional Waiver

The I-601A provisional waiver was a consideration of the Obama administration and has existed for over a decade. It survived the curtailment of immigration opportunities in the first Trump administration, and it could very well survive a second. Given the uncertainty and the likelihood that there will be no beneficial programs to help immigrants in the coming years, we think it is wise to move forward with an I-601A if you could benefit.