Keeping Families Together program faces legal challenge

For nondocumented spouses of U.S. citizens, the path to obtaining legal status has typically involved a mountain of paperwork and a trip back to their home countries.

The Biden Administration’s Keeping Families Together program, announced in June, looked to alleviate some of that burden and streamline the process.

But several states, including Indiana, balked at the proposed program, and support a federal lawsuit by Texas to halt the program’s implementation.

For Indiana’s state’s immigration attorneys and advocates, the program represents a potentially less time-consuming way for people who have lived in the U.S. more than a decade to obtain legal status without traveling back to their country of origin.

Laura Shepard, a Fishers attorney and owner of Shepard Immigration Law LLC, said that since she started practicing law in 2006, there have been legal efforts designed to make it easier for people married to U.S. citizens to get hardship waivers and legally immigrate here.

“Here is a way that cuts out a lot of that middle ground. It’s just a way to complete the process efficiently,” Shepard said.

Shepard said completion of a hardship waiver involves a lot of work and documentation, an expensive proposition for her clients, many of whom are lower-income families that struggle to come up with money for filing fees, psychiatric assessments, travel expenses and more.

She mentioned one family she’s represented where a nondocumented man married to a U.S. citizen initially filed a petition in 2015 and is still waiting for a resolution.

“He wants to be here legally. But the paperwork is so much work for them,” Shepard said.

Critics of the proposed immigration program fear it will lead to further burdens on states, including Indiana.

On Oct. 15, Indiana Attorney General Todd Rokita joined several other state attorney generals in a brief supporting Texas and other states on the issue.

In the brief, Indiana and six other states argued that unlawful immigration creates significant burdens and asked the court to issue an injunction halting the program.

“Defendants’ latest move is to rewrite immigration law to allow over a million illegal aliens to remain in the United States and live as temporary legal residents until they can apply for permanent residency. Defendants do all that amid an ongoing immigration crisis that imposes significant costs on the States, including hundreds of millions of dollars in new expenses relating to law enforcement, education, and healthcare programs. And Defendants decided not to even hear the States out on this issue—foregoing notice-and-comment rulemaking under the (Administrative Procedure Act) APA,”

To be eligible for the Keep Families Together program, immigrants must have lived continuously in the U.S. for at least 10 years, not pose a security threat or have a disqualifying criminal history, and have been married to a citizen by June 17 — the day before the program was announced, according to the Associated Press.

They must pay a $580 fee to apply and fill out a lengthy application, including an explanation of why they deserve humanitarian parole and a long list of supporting documents proving how long they have been in the country.

If approved, applicants have three years to seek permanent residency. During that period, they can get work authorization.

Before this program, it was complicated for people who were in the U.S. illegally to get a green card after marrying an American citizen. They can be required to return to their home country — often for years.

Angela Adams, owner/managing attorney of Carmel-based Adams Immigration Law, LLC, said this is a common concern with some of her firm’s clients.

Adams said a lot of her existing clients are working on waiver cases.

“They don’t want to leave. They’re afraid to leave the country,” Adams said.

Eligibility for program

Since 2013, certain immigrant visa applicants who are immediate relatives (spouses, children, and parents) of U.S. citizens can apply for provisional unlawful presence waivers before they leave the United States for their consular interview, according to U.S. Citizenship and Immigration Services.

In 2016, the provisional unlawful presence waiver process was expanded to all individuals statutorily eligible for an immigrant visa and a waiver of inadmissibility for unlawful presence in the United States.

Noncitizens who are not eligible to adjust their status in the United States must travel abroad and obtain an immigrant visa. Individuals who have accrued more than 180 days of unlawful presence while in the United States must obtain a waiver of inadmissibility to overcome the unlawful presence bars under the Immigration and Nationality Act before they can return.

According to USCIS, typically, noncitizens cannot apply for a waiver until after they have appeared for their immigrant visa interview abroad.

Adams said waiver approval currently can take up to three years in some cases, which means that during that time, a nondocumented person cannot obtain a driver’s license, Social Security card or employment authorization.

She said the program Biden announced is not amnesty or a “free pass” for those nondocumented individuals that were already seeking a path to citizenship.

“It’s just making that path shorter, faster and less risky,” Adams said.

There are no official numbers on how many people in Indiana would meet the program’s criteria.

Adams said, based on her clientele and conversations with other Indiana immigration attorneys, she estimated there were hundreds of people that qualified.

Lawsuit in Texas

In the Texas lawsuit, the U.S. District Court for the Eastern District of Texas in August entered an administrative stay for an initial period of 14 days, preventing DHS from granting parole in place under the Keeping Families Together process.

Since then, the administrative stay has been in effect through additional court orders.

The administrative stay was issued after 16 states, led by Republican attorneys general, challenged the program that could benefit an estimated 500,000 immigrants in the country, plus about 50,000 of their children. The states accused the administration of bypassing Congress for “blatant political purposes.”

One of the states leading the challenge is Texas, which in the lawsuit claimed the state has had to pay tens of millions of dollars annually for health care, law enforcement and more because of immigrants living in the state without legal status.

The amici curiae brief filed by Indiana and other states argue that the national immigration crisis has rendered every state “a border state.”

“The (Parole in Place) PIP Program exceeds the parole statute by providing sweeping parole eligibility to over a million illegal aliens at a stroke of the pen. But the Immigration and Nationality Act authorized the Secretary of Homeland Security to parole inadmissible aliens only on a ‘case-by-case basis for urgent humanitarian reasons or significant public benefit,” the brief states.

In October, the district court issued an order reimposing its original temporary stay and issued a restraining order, which is set to expire on Nov. 8.

Will the program survive?

The legal fight over the federal program comes as the country continues to see a record number of immigration cases awaiting resolution in court.

The nonpartisan Transactional Records Access Clearinghouse at Syracuse University reported in December the country’s immigration cases were facing a record case backlog, with more than three million pending cases.

Through September, there were 70,800 pending immigration cases in Indiana based on the immigrant’s address.

Erin Warrner, an immigration attorney with the Law Office of Jesse K. Sanchez in Indianapolis, said she thinks what makes this program different, from a legal argument standpoint, is that it is affecting U.S. citizens’ families.

Warrner said courts traditionally have held a different standard for legal harm toward U.S. citizens as opposed to laws that impact nondocumented residents without status.

She noted that, to qualify for the program, people must have at least lived 10 years in the United States and be married to a U.S. citizen.

“These are all people that live in our communities and have built lives here,” Warrner said.

Rachel Van Tyle, director of legal services at Exodus Refugee Immigration in Indianapolis, said most of Exodus’s clients are documented and would not be impacted by the program.

Van Tyle said she was familiar with the program and its features through her work with the American Immigration Lawyers Association.

She noted that it is similar to a program already in place for parents and spouses of U.S. military members.

The lawsuit could end up in the Texas Fifth District Court of Appeals, Van Tyle said, with the presidential election’s outcome also potentially affecting the program’s future.

“I think the legal argument (against the program) is it’s too legislatively burdensome,” Van Tyle said, adding she wasn’t sure the program would survive the lawsuit.

Van Tyle said whether former president Donald Trump or Vice President Kamala Harris wins the election, either candidate could decide, through a new Department of Homeland Security secretary, to withdraw the program if they are either philosophically opposed to it or feel like the legal challenge is too great.

Adams said she’s been practicing immigration law for 20 years.

Regardless of how the presidential election turns out, Adams said she didn’t think it was the job of a president or the states to fix the country’s immigration system.

She said it’s not ok that immigration has become such a politically charged issue, as it impacts real people’s lives.

“I wish Congress would do its job,” Adams said.•