By Debbie Smith
On November 15, 2013, USCIS issued a memo establishing a formal policy of providing parole on a case-by-case basis to the undocumented parents, spouses, and children of veterans and active military members. This policy, first referenced in a August 2010 letter to Congress by former DHS Secretary Napolitano, confers parole status and authorization to remain in the United States to the close family members of all active-duty members of the armed forces, the National Guard , reservists, and veterans. An important benefit of parole status is that, where otherwise qualified, it confers adjustment of status eligibility. The policy memo amends the Adjudicator's Field Manual (AFM) Chapter 21.1 and Chapter 40.6.
The memo – reportedly three years in the making – offers a model of an administrative measure capable of providing interim relief for other groups of noncitizens, including those unable to adjust status and those awaiting a preference category immigrant petition.
Statutory Authority for Parole
INA § 212(d)(5)(A) permits DHS, in its discretion, to grant temporary entry to noncitizens "on a case-by-case basis for urgent humanitarian reasons or significant public benefit." The statute specifically states that parole "shall not be regarded as an admission." The authority to parole includes not only the authority to permit noncitizens to enter the United States from a border station, airport or outside the country's borders but also includes the power to grant parole status to noncitizens already present in the United States. The grant of parole to those physically present in the United States is called parole in place.
Historically, parole has been used in a variety of circumstances. Prior to the Refugee Act, parole was the mechanism used to allow those fleeing persecution to enter the United States. An INS memo dated April 19, 1999, by INS Commissioner Doris Meissner, provides for the parole of individuals otherwise eligible for the Cuban Adjustment Act who entered the U.S. without inspection or admission. Parole in place has also been used in the case of transitional workers in the Commonwealth of the Northern Mariana Islands, a U.S. territory, to maintain their lawful status during a transition period.
Parole in place for military members conforms to the statutory structure of INA § 212(d)(5)(A). The purpose of the November 15th parole policy is to abide by the nation's commitment to those who have sacrificed for and served the country – veterans and current members of the armed forces. Military members face stress and anxiety because of the immigration status of their family members in the United States. Military preparedness is adversely affected when members of the U.S. Armed Forces are worried about the immigration status of their family. Citing these humanitarian and significant public benefit concerns, the memo details the effect of parole on inadmissibility and adjustment of status under INA § 245 and parole in place procedure.
Effect of Parole on Inadmissibility and Eligibility for Adjustment
An individual who is present in the U.S. without inspection, admission, or parole is inadmissible under INA § 212(a)(6)(A)(i). That section states that "an alien present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the Attorney General is inadmissible." If a noncitizen is paroled, he or she is no longer present without admission or parole, and therefore is not inadmissible. The memo explains that a grant of parole will also eliminate the second clause in INA § 212(a)(6)(A)(i) that bars a person who arrives in the United States at any time or place other than a designated one. This is because the second clause refers to a noncitizen who is presently arriving in the country without authorization. For these reasons, an individual who is paroled in place is inadmissible under INA § 212(a)(6)(A)(i).
Although parole in place eliminates inadmissibility under INA § 212(a)(6)(A)(i), it is important to remember that it does not cure other grounds of inadmissibility. One must still screen potential parole in place applicants for possible grounds of inadmissibility and determine whether a waiver of inadmissibility is available before filing the parole application.
Parole in place allows the parolee to adjust status under INA § 245(a), if otherwise eligible, as a person who has been inspected, admitted or paroled. Following the grant of parole, a noncitizen who previously entered the United States without inspection and is the spouse, parent or child of a U.S. citizen would no longer be required to depart the country. Such a departure could trigger the three- or ten-year bars for unlawful presence. Eligibility for adjustment of status through parole in place eliminates the need to leave the country and thus the triggering of this ground of inadmissibility.
Parole in place will not, in most cases, provide adjustment eligibility to noncitizens in the preference categories. Because parole does not remove any prior periods of unlawful immigration status, it does not permit noncitizens in the preference categories to adjust status. Those in the preference categories who have been inspected and admitted or paroled must still have always maintained lawful immigration status in order to be eligible for adjustment of status under 245(a). This requirement does not apply to immediate relatives.
Procedure for Applying for Parole in Place
An application for parole in place is filed with the director of the USCIS field office having jurisdiction over the applicant's residence. The USCIS website contains a map of the field offices nationwide at http://www.uscis.gov/about-us/find-uscis-office/field-offices . The following documents must be filed:
1) Completed Form I-131. No filing fee is required. Practitioners have noted that not all USCIS district offices understand that there is no fee required. You may want to cite to the memo and explain that you are not required to include a fee.
2) Evidence of the family relationship (spouse, parent or child of the veteran or active military service member). The definition of child under INA § 101(b)(1) includes a stepchild, adopted, or illegitimate child. These documents may include:
- Birth certificate of applicant
- Birth certificate of military service member or U.S. passport if applicable
- Marriage certificate
- Birth certificates of children
- Adoption decree
3) Evidence that the applicant's family member is an active duty service member, a reservist, National Guard member, or veteran. These documents may include:
- Copy of front and back of the service member's military ID (DD Form 1173)
- Copy of military deployment orders
- Defense Eligibility Enrollment Reporting System (DEERS) enrollment documents
4) Two passport style color photos of applicant
5) Evidence of any positive discretionary factors including:
- Letter from the military service member explaining hardship he or she would experience if applicant were not permitted to remain in the United States (recomended, but not required.) The stress and anxiety the military service member would experience if the applicant lost access to military benefits, housing, health care, etc. The letter should include identifying information about the service member – name, date of birth, place of birth, rank in military, branch of service, unit of assignment, and upcoming military deployment.
- Bona fide marriage
- Applicant's participation in the community, church, children's school.
Adjudication of Parole in Place
The November 15th memo states that the fact that the parole applicant is a spouse, child or parent of a veteran or active military member "ordinarily weighs heavilyin favor of parole in place." Unless there are serious adverse factors such as a criminal conviction, parole in place is "generally the appropriate exercise of discretion for such an individual." This means that USCIS adjudicators should in most cases grant parole in place in the absence of serious negative factors.
Grant of Parole in Place
Generally, if an application for parole is granted, the applicant will receive a Form I-94 stamped "Paroled." The memo does not provide instructions to USCIS officers regarding the protocol for or documents to be issued indicating a grant of parole in the amendment to the Adjudicator's Field Manual. Parole will be granted in one-year increments.
Although the November 15th memo did not discuss applicants in removal proceedings, if parole in place is granted, a motion to terminate proceedings or at minimum administratively close proceedings is appropriate.
Generally, following a grant of parole, the applicant may request employment authorization under 8 CFR § 274a.12(c)(11).
Contradictory Approaches to Noncitizens and the Military
While the November 15th memo offers a remedial policy for the immediate relatives of veterans and service members, the U.S. Navy and Marine Corps recently issued a policy barring the enlistment of U.S. citizens and legal residents who live with undocumented dependants. In response, 32 Congress people signed a letter asking the military for an explanation for this policy.