Biden to Waive Penalties for Undocumented Spouses of U.S. Citizens

Al Drago for The Washington Post
President Joe Biden in the White House on Monday.

President Biden on Tuesday will clear the way for hundreds of thousands of undocumented immigrants married to U.S. citizens to apply for legal residency in one of the most expansive immigration programs of his presidency, according to two federal officials with knowledge of the plans.

The policy shift is a bold move for the Democratic president months before the November elections, and a rebuke to congressional Republicans who have ignored his calls to expand border security and to create a path to citizenship for the 11 million undocumented immigrants living in the United States, many for decades.

Biden will unveil the policies at a celebration at the White House to mark the 12-year anniversary of another executive action taken to aid immigrants when he was vice president. On June 15, 2012, President Barack Obama said he would allow undocumented immigrants who arrived in the United States as children to apply for work permits, a program that transformed hundreds of thousands of lives.

The White House had no immediate comment on Tuesday’s announcement.

Marrying an American citizen is typically a fast track to U.S. citizenship, but immigrants who cross the border illegally are subject to significant bureaucratic hurdles that have left them in limbo for years. Federal law requires such immigrants to leave the United States for up to 10 years and then apply to return, but immigrants call the penalty excessive.

Biden will allow undocumented spouses to apply for legal residency without having to leave the United States, a major relief for those who have jobs and are raising young children and worry that there is no guarantee they will be allowed back into the country.

“It’s just too much risk for me to leave my wife, my son and everything we’ve established in the United States,” said Foday Turay, a 27-year-old immigrant from Sierra Leone who is married to a U.S. citizen and is among those invited to Biden’s announcement at the White House.

Turay crossed the Mexican border unlawfully in 2003 when he was 7 to join his mother, who had earlier fled that country’s war. He is now an assistant district attorney in Philadelphia and has a work permit through Obama’s 2012 program. But he said he wants to become a citizen.

About 500,000 undocumented spouses and 50,000 undocumented stepchildren of U.S. citizens are expected to be eligible to apply,federal officials said, speaking on the condition of anonymity because they were not authorized to discuss the proposal.

To be eligible, immigrants must have lived in the United States for at least a decade and meet other requirements.

Biden is also expected to announce a work-visa program for current enrollees in Obama’s 2012 program, known as Deferred Action for Childhood Arrivals, or DACA, and others who were shut out of the program after the Trump administration called it an illegal amnesty and tried to terminate it in 2017.

A federal judge in Texas has ruled that DACA is unlawful, and it is limited to existing enrollees while the case is pending. Biden will allow some Dreamers to apply for work visas, which will put them on a more solid legal footing than the deferred-action program, the officials said.

Details for both programs are still being worked out and are expected to be made public over the summer, officials said.

Anyone who applies is expected to pass criminal background checks and meet other requirements, in keeping with standard immigration procedures.

Angela Kelley, a senior adviser at the American Immigration Lawyers Association and a former Biden administration official at the Department of Homeland Security, called the move a “game changer” for immigrant families.

“They don’t have to look over their shoulder anymore and worry about the family being separated,” she said of those related to U.S. citizens.

As with DACA, advocates for immigrants expect fierce blowback to the program from Republicans who have challenged similar policies in court.

But lawyers said Biden’s program for undocumented spouses should be on strong legal footing because the legal authority will be “parole in place,” which is already allowed in federal law and therefore potentially insulated against any legal challenges in court.

“Parole’s been around for decades and decades and used in many different contexts,” said Kerri Talbot, executive director of the Immigration Hub, an advocacy group. “I think the courts will recognize the importance of having that power.”

The nonpartisan Migration Policy Institute estimates that 1.1 million to 1.3 million undocumented immigrants are married to U.S. citizens, so hundreds of thousands of immigrants will be shut out of the program because they haven’t been here for a decade, have criminal records or for other reasons.

Advocates for immigrants say even the modest program for spouses will be a major relief to immigrants and millions more of their U.S. citizen relatives who they hope will vote in the November elections.

“Hopefully, it will also inspire people to not sit this one out,” said Marielena Hincapié, a scholar at Cornell Law School and a former executive director of the National Immigration Law Center. “I’m hoping it’s an indirect benefit from an announcement like this.”

Some Democrats have soured on Biden as his early efforts to create a path to citizenship for undocumented immigrants were eclipsed by record numbers of new migrants arriving at the U.S. southern border, spurring him to crack down on illegal crossings. This month he created new asylum restrictions because he said border apprehensions had reached emergency levels.

But Biden has also deployed his executive powers to protect undocumented immigrants more broadly than any other president. The Biden administration has granted temporary protected status to more than 1 million immigrants in the United States and allowed in hundreds of thousands from other groups fleeing violence or poverty abroad. His administration has also stopped carrying out workplace raids or other enforcement that would target long-standing undocumented immigrants.

Democratic lawmakers and advocacy groups have urged Biden for months to expand relief for long-term undocumented immigrants, amid threats from his Republican rival, former president Donald Trump, that he would carry out mass deportations if elected in November.

Turay, a prosecutor, expressed frustration that he is the only member of his family who is not a U.S. citizen, after decades in the United States, a law degree and a job as a public servant. He married his wife on June 17 of last year, and they have a 10-month-old son.

Turay said his mother fled Sierra Leone first because she qualified to be a refugee, but he said she could not bring him with her immediately. She left him in the care of his grandmother and sent for him when the woman grew sickly; she later died.

“She took extreme measures,” he said of his mother. “There was no way she was going to leave her only child” alone.

But because of his unlawful crossing, he said, he fears he would not be allowed back into the country if he left to apply for legal residency through his wife.

“It’s absurd that I’m still dealing with all this,” he said. “Instead of me focusing on victims of crime, I’m here trying to get relief to stay.”