President Biden announced today the introduction of two immigration measures that will ameliorate the situation of certain foreign nationals that are in the United States but lack immigration documentation.

Keeping American Families Together

The first of these actions will require the Department of Homeland Security (DHS) to take action to ensure that families including U.S. citizens and undocumented spouses and children can stay together.  A “new process” will help undocumented spouses and children apply for lawful permanent residence through adjustment of status without having to leave the United States and complete the process overseas.

Eligibility for this new process will be limited to persons who (1) as of June 17, 2024, have resided in the United States for 10 or more years and (2) are legally married to a U.S. citizen as of June 17, 2024, and (3) satisfy all applicable legal requirements, including not having a disqualifying criminal history or posing a national security concern. The announcement notes that, on average, persons eligible for this process will have lived in the U.S. for at least 23 years.

Persons who are deemed eligible for participation by the DHS will be allowed a three-year period to apply for permanent residence in the United States without fear of removal and will be permitted to remain with their families in the United States and be eligible for a grant of work authorization for up to three years.

The announcement estimates that approximately half a million spouses of U.S. citizens will be eligible for this program, as will approximately 50,000 undocumented children under the age of 21 whose parents are married to U.S. citizens.  The program is expected to start in late summer of this year.

Easing the Visa Process for U.S. College Graduates, Including Dreamers

The second of these actions will allow undocumented persons, including recipients of the Deferred Action for Childhood Arrivals (DACA) program and other “Dreamers” (generally understood as undocumented persons who arrived in the United States as children, attended school here, and identify as Americans), who have earned a degree from an accredited U.S. college or university in the United States, and who have an offer of “high skilled” employment from a U.S. employer in a field related to their degree, to obtain a visa status that authorizes employment (such as H-1B status) with less delay.  It is not clear if eligible persons will be able to apply for permanent residence through an employment-based process, however.

The precise details of how these two measures will take effect have not yet been disclosed, but it is expected that a notice in the Federal Register will be published soon to provide the necessary information.  We anticipate that the two measures will begin to be implemented by the end of this summer.

The two new measures announced today will apply only to persons who currently do not hold lawful immigration status in the United States and will thus not have a significant impact on the ability of United States employers to continue hiring and retaining the services of foreign national workers.  The flexibility granted to undocumented graduates of U.S. colleges and universities to transition to a visa status that allows employment is a welcome development for such employers, however, and will reduce the difficulties involved in regularizing the employment status of such persons.

We will continue to monitor the progress of these two initiatives and will issue a further Alert once the details of their implementation have been announced.