A very important USCIS Policy Memorandum (PM-602-0091) was issued on November 15, 2013 that for inexplicable reasons, has not received much attention, although it potentially affects thousands of undocumented or “illegal” aliens throughout the United States. The Subject is “Parole of Spouses, Children and Parents of Active Duty Members of the U.S. Armed Forces, the Selected Reserve of the Ready Reserve, and Former Members of the U.S. Armed Forces or Selected Reserve of the Ready Reserve and the Effect of Parole on Inadmissibility under Immigration and Nationality Act 212(a)(6)(A)(i). “
What does the Policy Memo Do and whom does it affect?
The policy memorandum applies to spouses, parents, and children of those serving active duty in the U.S. Armed Forces, in the Selected Reserve or who have previously served in the U.S. Armed Forces or Selected Reserve of the Ready Reserve. What it does it provide for uniformity and consistency in the processing of parole requests made by this class of people. The memorandum reflects the government’s increased sensitivity to members of our military who may be anxious and concerned over the immigration status of their family members-stressors, which in turn, can affect their performance. It amends the Adjudicator’s Field Manual (AFM), which is binding on USCIS employees, by adding a special parole consideration section for family members of the military who do not have lawful immigration status.
What is Parole?
The statutory authority for parole derives from INA 212(d)(5)(A) which provides the Attorney General with discretion to “parole [an alien who would otherwise be inadmissible] into the United States temporarily under such conditions as he may prescribe…on a case-by-case basis for urgent humanitarian reasons or significant public benefit.” The Memo notes that while parole is ordinarily extended in the context of allowing somebody at the border (who would not normally be “admitted”) into the US, it may also be granted to aliens already physically present in the United States who were not inspected or admitted. Parole under these circumstances is called “parole in place.” Parole in place, in fact, has been around for quite some time and has been used as a mechanism to minimize family separation and enable family members (spouses, parents, and children) who would not ordinarily be able to adjust status (in other words, apply for permanent residence within the US), do so.
The Memo and the AFM now incorporate the USCIS’s position that while parole in place is a measure to be “sparingly,” the fact that an individual is a qualifying family member of an applicable member of the military, “ordinarily weighs heavily in favor of parole in place.” In fact, “absent a criminal conviction or other serious factors, parole in place would generally be appropriate exercise of discretion for such an individual.”
If I am eligible, how do I apply?
Parole in Place will be issued in one-year increments. Application is made to USCIS on Form I-131 with
· Evidence of the family relationship
· Evidence that the alien’s family member is an applicable member of the military (Active Duty member of the U.S. Armed Forces, individual in the Selected Reserve of the Ready Reserve or an individual who previously served in the U.S. Armed Forces or the Selected Reserve or the Ready Reserve)
· Two identical, color, passport style photographs and
· Evidence of any additional discretionary factors that the applicant wishes to be considered
What are the potential ramifications and benefits of being paroled?
The legal ramifications are far-reaching. If an individual is present in the United States without having been admitted or paroled, or if the alien “arrives in the United States at any time or place other than as designated [by DHS], that person is under most circumstances ineligible to adjust status due to the inadmissibility provisions found in INA 212(a)(6)(A)(i). The import of a parole in place is that the parole potentially renders an applicant eligible to adjust under Section 245a of the INA because “an alien who entered the United States without inspection, but subsequent receives parole, is not inadmissible under either of the two inadmissibility grounds contained in section 212(a)(6)(A)(i).” See Memo. Furthermore, 245(a) requires either inspection and admitted or paroled. The very grant of a parole in place meets the language.
Caveat
It does bear noting, however, that the memo makes clear that an applicant must nevertheless satisfy any other requirements for adjustment of status. Only the entry without inspection, or attempted entry, is eliminated. If, for example, the alien has failed to maintain lawful status, he or she will still be ineligible to adjust (there is an exception for immediate relatives). Additionally, prior periods of unlawful status are not expunged by a grant of parole, and even if an alien satisfies all the prerequisite eligibility requirements to adjust status, an application can still be denied due to its discretionary nature.
Should a humanitarian policy like this be extended to immediate relatives of US Citizens, not just those in the military, millions of people could potentially benefit. Even if comprehensive immigration reform can’t be passed, policies like parole in place illustrate that there are still mechanisms within the existing system that could achieve some of what advocates are fighting so hard over.