Legal Pathway Opens for Undocumented Spouses of US Citizens. Why Are Some Waiting to Apply?

A rare legal pathway has opened up for as many as half a million undocumented immigrants in the Bay Area and across the country that could lead to eventual U.S. citizenship. But in an election year when immigration is a polarizing issue, it’s also raising questions for those who stand to benefit.

The Biden Administration began accepting Monday applications for a program that would enable long-term unauthorized immigrants married to U.S. citizens — and 50,000 undocumented stepchildren of citizens — to become permanent legal residents.

Immigrant legal aid groups across California are rolling out information sessions on how to apply, even as they rush to read the program’s fine print (PDF) — which won’t be officially published by the federal government until Tuesday, Aug. 20.

While some families said they were eager to take advantage of the long-sought opportunity to secure the full rights of citizenship, others were cautious about applying. With former President Donald Trump condemning undocumented immigrants as “poisoning the blood of our country,” they fear they’d be especially vulnerable if he makes good on his vow of mass deportations.

Fear of deportation if Trump wins

Janet Reyes, a dental assistant at an Oakland high school, is a U.S.-born citizen. She and her husband, Marco, have two kids, ages 8 and 15, who were also born here. But Marco, a construction worker, is undocumented, having come illegally from Mexico when he was a young man. KQED is not using his last name because of his concerns about deportation.

When President Joe Biden announced the legalization program in June, Reyes said she and her husband were “beyond excited” that it would allow him to get a better job and join Reyes and the kids on family vacations. But now Reyes says they’re not sure it’s wise to give the government so much information about Marco.

“If you apply, you’re going to be added to this list. … And if the Republican wins, it might be something bad that you’re on this list,” she said. “Some of my coworkers were just like, ‘I think we’re going to wait until after the election to see who wins.’”

Angélica Salas, the executive director of the Coalition for Humane Immigrant Rights of Los Angeles, is encouraging undocumented immigrants who’ve been in the U.S. for at least a decade and are married to a citizen to find out if they qualify and apply.

At a press conference Monday, Salas applauded the Biden-Harris administration for creating the program, known as Keeping Families Together. She acknowledged that it’s possible a future Trump administration could end the program or that it could face a challenge in court, as former Trump immigration adviser Stephen Miller has pledged. But Salas said that’s all the more reason for eligible families to get covered by the program now.

“What we know is that the program exists today,” said Salas. “We want to make sure as many families [as possible] are in the program, even as we know that there are many who see this as a threat. We just don’t understand why having U.S. citizens actually take advantage of their right as citizens to petition for their families is threatening to anybody in the United States.”

Critics on the right called the Biden executive order unconstitutional and suggested Vice President Kamala Harris would go further in granting legal status to undocumented immigrants if elected president.

“This illegal and unlegislated amnesty for half a million illegal aliens is just a cat’s paw for what is likely to come in a future administration if it is allowed to stand,” said Dan Stein, president of the conservative Federation for American Immigration Reform.

How the program works

Under current law, noncitizens who entered the country illegally cannot become legal residents without leaving and re-entering lawfully through an official port of entry. However, immigration law also states that those who have been in the U.S. without legal immigration status are barred from re-entering, often for 10 years and sometimes longer. That has created a Catch-22 for undocumented immigrants, including spouses of U.S. citizens, who would otherwise be entitled to a green card.

The new program offers “parole in place,” or the ability to apply for legal admission to the U.S. while already here, on a case-by-case basis to noncitizens who:

• Entered without authorization;
• Have lived in the U.S. continuously for at least 10 years;
• Are married to a U.S. citizen;
• Have no felony convictions or current criminal charges;
• Have not been ordered deported;
• Undergo background checks and national security and public safety screenings.

It’s also available to undocumented immigrants under age 21 who are stepchildren of U.S. citizens and have a noncitizen parent married to that citizen.

In a statement released Monday, the director of U.S. Citizenship and Immigration Services, Ur Jaddou, said the process is geared toward noncitizens “who contribute to and have long standing connections within American communities across the country.”

“Too often, noncitizen spouses of U.S. citizens — many of them mothers and fathers — live with uncertainty,” said Jaddou. “This process to keep U.S. families together will remove these undue barriers for those who would otherwise qualify to live and work lawfully in the U.S.”

One of those parents is Brenda Valle, 35, a student enrollment administrator and mother of two young sons, who spoke at the CHIRLA press conference in Los Angeles Monday.

Valle, who says she was brought to the U.S. as a 3-year-old, has protection from deportation and a renewable two-year work permit under DACA, or Deferred Action for Childhood Arrivals. But that protection is temporary, and until now, she had no way to legalize her status, even though as the spouse of a U.S. citizen, she’s technically entitled to become a citizen.

“It brings a sense of relief I can barely put into words,” said Valle. “I look forward to the day when I can focus on long-term goals … and leave behind the constant worry of what would happen to my children if we were separated.”

Spreading the word

Immigrant rights groups are beginning to host information sessions and spread the word about the program through social media. CHIRLA is hosting presentations three days a week.

The East Bay Sanctuary Covenant in Berkeley has started weekly information sessions over Zoom. The group’s immigration legal services manager, Shiori Akimoto, said she thinks the program will be especially beneficial for young adults with DACA because they’re likely to meet the criteria.

“DACA recipients have been in the U.S. since 2007, and many are married to U.S. citizens,” said Akimoto. “We have more than 1,000 DACA clients, and out of those, at least 200 may qualify.”

Other groups were taking a more cautious approach, with some lawyers complaining that the government had been slow to release the rules of the program. At Centro Legal de la Raza in Oakland, attorney Lourdes Martínez said her team is consulting with other groups in the area before setting up legal clinics.

“I expect this will be a very hot topic for many mixed households in our community,” she said. “We are training our staff, talking to partners and gearing up to respond to our community’s interest in the program.”

For Janet Reyes the thought of her husband Marco applying for legal immigration status generated both hope and apprehension. She said they plan to meet with their lawyer this week and find out whether he recommends applying now or seeing how the presidential election turns out.

“We’ve been waiting so long anyway, so it’s okay,” she said. “We’ll wait a little more.”