The Biden Administration’s newest immigration policy, meant to promote family unity in the immigration system, is already facing legal challenges and an administrative hold since its announcement in August, with Western Slope attorneys advising qualifying immigrants lacking permanent legal status to apply as soon as possible. 

The policy, called “Keeping Families Together,” was published in the Federal Register on Aug. 19. The policy allows noncitizen spouses who have been living in the U.S. for at least 10 years and qualifying stepchildren of U.S. citizens to apply for parole in place. 

When the Department of Homeland Security announced Keeping Families Together on June 18, existing U.S. immigration law stated that immigrants who enter the country without authorization and are married to U.S. citizens were ineligible for permanent legal status. Receiving permanent legal status would require immigrants to leave the U.S., be processed by a U.S. consulate overseas and reenter through a green card application submitted by a spouse with U.S. citizenship.

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“This can create all sorts of legal problems. They might not be able to come back, so it’s a very scary moment for a lot of people to do something like this,” Dillon-based Elevation Law Attorney William McNamara said. “From a legal perspective, parole in place totally gets rid of that, and that allows them to be paroled in the United States.” 

With parole in place, applicants for permanent legal status can legally remain in the U.S. for three years “for urgent humanitarian reasons or significant public benefit,” according to U.S. Citizenship and Immigration Services. Paroled immigrants can then qualify for an adjustment of status to permanent residents after completing the standard process for a green card. Parole in place was originally created as a program for family members of the military.

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White House officials estimate the program could benefit roughly 500,000 undocumented spouses and 50,000 stepchildren. Approximately 12,000 of those undocumented spouses are currently living in Colorado, according to a letter from the office of Sen. John Hickenlooper, D-Colorado, commending the policy. 

Who qualifies for the program? 

To be considered for a discretionary grant of parole in place, noncitizen spouses of U.S. citizens must have been married to their spouse and living in the United States since at least June 17, 2014.  

Noncitizen stepchildren of U.S. citizens are eligible if they were under the age of 21 and unmarried on June 17, 2024, and have been continuously present in the U.S. since that date. The child’s noncitizen parent must have been married to a U.S. citizen on or before June 17, 2024, and before the stepchild’s 18th birthday. 

Parole in place is only available for noncitizens residing in the United States, meaning that spouses of U.S. citizens who already left the country to apply for a green card are no longer eligible. 

All applicants must undergo background checks and national security and public safety vetting, which is where some applicants in Colorado have already been turned away, according to McNamara. 

“The people who have been turned away off the bat (have) been because of criminal history,” McNamara said. 

Disqualifying criminal offenses for the new parole in place policy are more broad than existing U.S. law’s inadmissibility grounds (classifications that would bar immigrants from entering the country, earning a green card or applying for a visa) and the Immigration and Nationality Act, which are much more specific about which convictions, health and safety concerns are marked as barriers for entry. 

“In this new (parole in place) policy … instead of saying, ‘Anyone who’s inadmissible doesn’t qualify for parole in place,’ what it is saying is, ‘People with these types of criminal history don’t qualify,'” McNamara said. “I believe that the Biden Administration did this because of this sort of panic that’s happening right now.” 

Applicants with felony offenses are automatically disqualified, as well as those with convictions for offenses including but not limited to murder, sexual abuse, human trafficking, exploitation of minors, domestic violence, aggravated assault and offenses involving firearms, regardless of whether they are felonies or misdemeanors. 

Generally, criminal convictions will result in a presumption of ineligibility for this process, excluding minor traffic offenses. Presumptions may be rebutted on a case-by-case basis. 

“The people I’ve had to turn away, they had criminal history that I could tell just off the face of the envelope that (they’re) not going to qualify for this program. And normally I wouldn’t say that to somebody. I would want to dig in a little deeper and kind of say, OK, maybe, maybe we can do this,'” McNamara said.  

Being under active investigation for a crime is also an automatic disqualifier for applicants of the new policy, which is not the case for those applying for regular residency or citizenship, according to McNamara. 

“I feel like the presumption of innocence is one of the most important and foundational legal principles that we have in American criminal law,” he said. “But basically, in this program, immigrants aren’t receiving the same presumption of innocence that they would receive in the criminal process.” 

Despite having been implemented over two weeks ago, McNamara said he started hearing about people getting approved as early as Aug. 21 — just two days later. He said Elevation Law received roughly more than 20 inquiries about the program from residents in Colorado during its first week. 

“I’d definitely try to get an application in if you thought you could qualify because who knows what’s going to happen with the injunctions and everything,” he said. 

Smith Immigration, an immigration-only law firm in Glenwood Springs, has helped at least seven people apply for the program since Aug. 19. 

States challenge the program 

At 6 p.m. Monday, Aug. 26, federal district court judge J. Campbell Barker in the eastern district of Texas issued a temporary administrative hold on the Keeping Families Together program for a minimum of 14 days in response to a recent lawsuit out of Texas challenging its legality. The court noted there may be cause to extend the pause through mid-October, according to a report from the American Immigration Lawyers Association. 

The lawsuit was filed Aug. 23 by 16 states — Texas, Idaho, Alabama, Arkansas, Florida, Georgia, Iowa, Kansas, Louisiana, Missouri, North Dakota, Ohio, South Carolina, South Dakota, Tennessee and Wyoming — and led by Texas and America First Legal. Fifteen of the states are led by Republican governors.

The lawsuit was not surprising to Smith Immigration. 

“We’ve seen it with (Deferred Action for Childhood Arrivals) and the potential program for parents of U.S. citizen children a while ago,” Smith Immigration owner and attorney Jennifer Smith said. “I knew they were going to file a lawsuit trying to stop it, and we knew it was going to be in Texas, just like it has been with all the other pieces of anti-immigrant litigation.” 

A group of six undocumented immigrants who stand to benefit from the program and their U.S. citizen spouses filed a motion to intervene as defendants in federal court, according to the immigration lawyers association. 

Federal immigration services are still accepting Keeping Families Together parole applications during this time, but may not approve them until the pause is lifted. 

“We still have more people applying even with the pause, but unfortunately none of our cases were adjudicated before the pause,” Smith said. 

“It’s definitely more of a risk, though, because there is a good chance that (the judge) might make the injunction permanent,” McNamara said. “So we might have to wait until the end of this federal court litigation, which could be next month, a year or two years, to know if this program survives or not.” 

If Barker rules for the program to continue as before, approvals may resume after the 14 days (or later, if the hold is extended) and applications made during the pause would be considered. 

Were the program to be permanently stopped, applications submitted during the pause period could still qualify for approval, or U.S. Citizenship and Immigration Services could be ordered to deny pending applications, dependent on Barker’s ruling. Some fear that statuses already granted to noncitizens could be revoked if Barker were to determine that approved applicants were improperly granted parole. 

“It might be that even if you were approved (for parole in place) they might take it away from you, but if DACA is any indication, then maybe not,” McNamara said, likening the Deferred Action for Childhood Arrivals program’s enjoinment of applications to what could happen with parole in place. “So a couple people might be able to fully benefit from this program before (and if) it’s enjoined.”

Western Slope immigration attorneys advise potential applicants 

Keeping the cost, risks and alternative paths to permanent residency in mind, attorneys are advising potential applicants to consider all options. 

“I think (applying) is a decision that they need to make on a personal level,” McNamara said. “Some people feel like they have no other option and they want to just get the application in anyways … and some people have told me, ‘I’ve been undocumented for so long that I’m just going to wait and see what happens before we pay any more money for something that may or may not exist.'” 

The filing fee is $580 per application with no waiver. For some people, that is no small sum to risk on a program with an unclear future. 

“To be honest, I do think it’s a case-by-case kind of situation for each client,” Smith said. “Some clients are going to have other things pending or other options and may not want to spend the money knowing that they may never get a benefit from it because you don’t get a refund if the program stops … And we don’t want them to apply for something that will put them at risk of not being able to wait out their time in the U.S.” 

For those interested in the program, who are clear of risk factors like criminal convictions and are certain they meet the qualifications, both Smith and McNamara advise submitting applications sooner rather than later. 

“I would definitely say that, if it were my life and my case, I’d try to get an application as soon as possible,” McNamara said. 

To request parole in place under Keeping Families Together, the noncitizen spouse or child must submit Form I-131 online at USCIS.gov. Denied applicants will not be referred to U.S. Immigration and Customs Enforcement unless they are determined to be a threat to national security or public safety. 

“Generally speaking, without any other complicating factors being present, we’re saying, ‘If you can afford it, and if you don’t have any risk factors, and if it makes sense for you, then go ahead and complete the application process,'” Smith said.