In an executive order unveiled Tuesday, President Joe Biden announced that undocumented spouses of American citizens who meet certain legal criteria will be shielded from deportation as they seek legal residency.

Signed just days after the 12th anniversary of the Deferred Action for Childhood Arrivals (DACA) policy, immigration advocates in Nevada and beyond cheered Biden’s move as the single biggest expansion of undocumented rights since the Obama-era landmark executive order, which provided work authorization and deportation protection to some children brought to the U.S. illegally by their parents.

The order provides significant relief to mixed-status families, in which people in the same household have different immigration statuses. Such families are common in Nevada, which is home to nearly 136,000 people who live with an undocumented family member, according to the American Immigration Council.

“The steps I’m taking today are overwhelmingly supported by the American people, no matter what the other team says,” said Biden, who denounced former President Donald Trump’s record on immigration several times. “The reason is simple — it embraces the American principle that we should keep families together.”

But the order, criticized by Trump as “mass amnesty,” is also likely to face legal challenges, particularly over the process by which it’s being instated. Certain elements could also be overturned by a subsequent administration.

How it works

More than half a million undocumented immigrants are expected to be eligible for the new opportunity to “parole in place.” Immigrants must have been in the U.S. for more than 10 years, have no prior deportation history and have a spouse or parent who is an American citizen as of June 17 to qualify. 

Those who meet the criteria can apply for approval from the Department of Homeland Security (DHS); those approved — which Biden said would be contingent on passing a criminal background check — will then have three years to apply for lawful permanent residency. Undocumented spouses are already eligible for legal residency, but doing so previously required them to leave the country, a process that could take years. 

During that period, they will be permitted to remain in the U.S. without threat of deportation and can apply for work permits — a key feature, considering undocumented immigrants across the country are barred from stable jobs or promotions because they lacked legal work authorization.

Michael Kagan, the director of the UNLV Immigration Clinic, said the ability to obtain legal residency will be a game-changer for thousands of Nevadans.

“A work permit usually is just for a couple years and expires,” Kagan said. “But this is potentially a lifelong, life-changing measure if it goes into effect.”

Undocumented spouses, and stepchildren under the age of 21 of U.S. citizens, are eligible for the new status. The application process is expected to open by the end of the summer.

Kagan suggested that undocumented Nevadans who believe they may be eligible begin gathering documents and stay wary of scams from notarios or immigration consultants asking for money to help with the yet-unreleased application.

Contrary to common narratives about “green card marriages,” marrying a U.S. citizen does not automatically grant protections to people who entered the U.S. illegally. Citizens can sponsor their spouse for lawful permanent residency, but doing so requires time to travel outside the U.S. for a consulate interview, money and navigation of a complicated bureaucracy — and can end in a 10-year ban on entering the U.S.

Kagan said that in reality, undocumented spouses of citizens had no recourse to obtain legal status.

“If you're in a loving marriage, you built a family and you have children, you are not going to take a path that requires your family to be separated for a decade,” he said. “There is no path for these families to legalize, even if they are integral parts of American communities in every way, and have been for many, many years. That's what this [action] is addressing.”

Biden’s announcement was cheered by Nevada’s Democratic members of Congress and immigrant rights organizations such as Make the Road Nevada, while panned by the Trump campaign. 

Sen. Catherine Cortez Masto (D-NV) wrote an op-ed in Univision on Sunday calling on Biden to “deliver for immigrant families” by providing undocumented spouses with legal status and work authorization. She shared the story of a Nevadan named Elena who divorced her undocumented husband — not because she wanted to, but because her husband’s lack of a Social Security number kept her from passing a background check needed to get a job.

“I’m thrilled to celebrate this incredible step forward,” Cortez Masto said in a statement. “The Biden administration understands that you can invest in border security and stand with immigrant families — it’s the right thing to do, and it’s the smart thing to do.”

Both Cortez Masto and Reno Mayor Hillary Schieve were on the stage at Tuesday’s announcement at the White House, while Sen. Jacky Rosen (D-NV) attended the event as well.

In an interview, Schieve, who is a nonpartisan, said Biden’s executive order makes economic and humanitarian sense, particularly for Nevada’s dominant industry — gambling.

“Many of our immigrants are working in hospitality,” Schieve said. “[Biden’s action is] a way to provide longevity for them, but also longevity for the business environment in Nevada. It works both ways.”

Inside the politics

Biden enacted the new policy under the presidential power to grant parole. A similar parole in place status had previously been extended to undocumented spouses, children and parents of U.S. military service members and veterans.

Because the executive order involves extending parole to a previously ineligible population, a future administration could revoke the authority. The Trump campaign slammed the new policy as “mass amnesty” intended to encourage “illegals” to vote for him.

Noncitizens are legally prohibited from voting in federal elections, and Biden’s executive order would facilitate currently undocumented people to apply for lawful permanent residency, rather than citizenship.

Sam Brown, the Republican candidate running against Rosen for U.S. Senate, said in a post to X that both Biden and Rosen have been negligent about the border — though the executive order focuses on long-term undocumented immigrants already in the U.S.

“Nevada voters will not be fooled by do-nothing executive orders in June of an election year,” Brown wrote.

Because applicants must provide information to DHS, Kagan said he would not be surprised if undocumented people hesitate to apply until after the election — some people waited to apply for DACA in 2012, he said, until after then-President Barack Obama won re-election for fear that his Republican opponent would use the information they gave to DHS against them if elected.

The policy is also likely to face legal challenges, as DACA has for years.

Kagan said he is worried that the Biden administration opened itself to liability by not structuring the executive order as a rule and sending it through the notice and comment process. Such a move would be time-consuming, and Biden’s executive order is clearly intended to have electoral impact. Obama-era expansions to DACA were ultimately defeated in court over the lack of notice and comment rulemaking — though Kagan added that hostile courts will likely find issue with Biden’s policy no matter the format.

The move comes as Biden aims to address criticism over how he has handled both the border and delivered for immigrants. Two weeks ago, he signed an executive order restricting asylum once border crossings reach a certain threshold, a rightward pivot on migration that has already been challenged in court by immigrant rights groups and drawn frustration from progressives. 

The political dynamic was underscored by divisions among Nevada Democrats — while Cortez Masto and Rosen, representing a purple state, supported both the asylum restrictions and relief for mixed-status families, state Sen. Edgar Flores (D-Las Vegas) expressed frustration with Biden on his border policy while offering support for today’s action in an MSNBC op-ed with Rep. Ro Khanna (D-CA). 

Tuesday’s executive order attracted a much more standard group of Democratic supporters, from the Congressional Hispanic Caucus to immigration advocates, including those such as Make the Road that were opposed to the border action. 

In a statement, Make the Road Nevada lead organizer Rico Ocampo said the executive order would bring significant relief to mixed-status families like his.

“As someone who has experienced the limitations of DACA, being married to a U.S. citizen, I know how crucial this change is for the stability and well-being of countless families like mine, who don’t have to fear separation from their loved ones anymore,” Ocampo said.