Parole in Place for Families of Military Service Members and Veterans

 

Introduction to Parole in Place

parole in placeThe Attorney General has limited discretionary authority to grant parole to an alien who is in the United States without status. In 2013, United States Citizenship and Immigration Services (USCIS) formalized a process for considering parole in place for spouses, children, and parents of U.S. military personnel who are present in the United States after entry without inspection (EWI). This article will explain how parole in place works in general and its specific applicability to certain family members of U.S. military personnel.

Statutory Background for Parole in Place

Parole-in-place is found in section 212(d)(5)(A) of the Immigration and Nationality Act. The statute provides for both parole-in-place and parole for an alien who is outside of the United States (which is the more common use). The statute grants the Attorney General discretionary authority to grant parole in place for either urgent humanitarian reasons, or if the Attorney General finds that there is a significant public benefit in granting parole-in-place so that the alien may apply for admission from in the United States. Please note that this statute specifically excludes alien crewmen from being eligible for parole in place.1

Parole-in-place may last for as long as deemed necessary by the Attorney General. While an alien who was granted parole-in-place is not considered to have been “admitted” into the United States, the alien may in most cases apply for adjustment of status while on parole. While any alien who is in the United States after EWI is eligible for parole in place, it is only used broadly for family members of U.S. military personnel (please see next section).

Parole in Place for Spouses, Children, and Parents of U.S. Military Personnel

On November 15, 2015, USCIS formalized parole-in-place procedures for spouses, children, and parents of U.S. military personnel.2

This memo applies to the:

  • Parents
  • Spouses
  • Children

Of:

  • Active duty members of the U.S. Armed Forces
  • Former members of the U.S. Armed Forces
  • Active duty members of the Selected Reserve of the Ready Reserve
  • Former members of the Selected Reserve of the Ready Reserve.

The use of parole in place for persons listed above predates the memorandum; however, the memorandum formalized the process for granting parole in place to such individuals.

According to the memorandum, the fact that an individual is the spouse, parent, or child of any of the listed U.S. military personnel should ordinarily weigh heavily in favor of parole in place. Because of this, parole in place is generally appropriate unless the alien in question has a criminal conviction or other serious adverse factor(s) weighing against the favorable exercise of discretion.

The memorandum instructs that parole in place should be granted for an initial period of one year, and may be granted in further one-year increments.

Parole in Place and Eligibility for Adjustment of Status

The memorandum determines that parole in place waives inadmissibility grounds listed in section 212(a)(6)(A)(i) of the INA [for being present in the United States without being admitted or paroled and for arriving in the United States at any place but a port of entry]. In effect, parole in place cures inadmissibility for EWI. The memorandum reasons that once an alien is paroled, he or she is no longer present in the United States without having been admitted or paroled. Furthermore, USCIS determined that the second prong of section 212(a)(6)(A)(i) relating to arrival can only apply at the time of arrival, and thus the second prong is no longer an inadmissibility ground once the alien is in the United States.

This determination has important effects for adjustment of status eligibility for aliens who are granted parole in place. In order to adjust status under section 245(a), an alien is required to have been admitted or paroled into the United States and to be admissible to the United States.3 Thus, parole in place eliminates two critical barriers to adjustment of status. However, section 245(c)(2) of the INA requires that an alien have maintained lawful presence since entry into the United States. Immediate relatives of U.S. citizens and other specified categories are exempt from the lawful presence since entry requirement in 245(c)(2).

If the alien who is granted parole in place is an immediate relative of a U.S. citizen, or has a different exemption under section 245(c)(2), he or she should be eligible for adjustment of status after being granted parole. Please note that USCIS has stated that eligibility for adjustment of status (after being granted parole in place) is not a prerequisite for being granted parole in place.4

It is important to remember that parole in place only cures inadmissibility for EWI. If the alien granted parole-in-place has any other grounds of inadmissibility such as the permanent bar of inadmissibility, criminal and related grounds, or any other grounds of inadmissibility would need to obtain waivers for the applicable ground(s) of inadmissibility in order to be eligible for adjustment of status.

Finally, the decision to grant adjustment of status is discretionary even if the applicant is not barred from adjustment on account of inadmissibility or any of the bars listed in section 245(c). Thus, being granted parole in place does not ever by itself guarantee that the parolee will ultimately be permitted to adjust status.

While an alien is on parole status after being granted parole in place, he or she will be eligible to request advance parole.5

Requesting Parole in Place as the Spouse, Child, or Parent of U.S. Military Personnel

In order to request parole in place, the alien must submit the following:

  • Completed Form I-131, Application for Travel Document (may be filed without fee);
  • Evidence of family relationship;
  • Evidence that family member is an 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 of the Ready Reserve;
  • Two identical passport style photos;
  • Evidence of any favorable discretionary factors that the alien wishes for USCIS to consider.

Proposed Expansion to Parole in Place to Spouses, Children, and Parents of Enlistees

On November 20, 2014, the Secretary of the Department of Homeland Security (DHS) instructed USCIS to work with the Department of Defense in order to expand the parole in place procedures to include spouses, parents, and children of U.S. citizens and lawful permanent residents who seek to enlist in the U.S. Armed Forces.6 USCIS has not yet released procedures for expanding this parole in place program as of the time of the writing of this article.

Parole in Place Advice

USCIS passed its guidelines on parole in place to help the families of Active Duty service members, selected reservists, and veterans, obtain immigration relief. However, parole in place is still a discretionary remedy. USCIS may rely upon adverse factors to deny parole in place if it deems that the remedy is not appropriate in a given case. It is also important to remember that parole in place only cures inadmissibility for EWI, and does not impact other applicable grounds of inadmissibility. Furthermore, parole in place does not guarantee that the parolee will ultimately have an easy road to adjusting status, especially if he or she is not the immediate relative of a U.S. citizen.

For these reasons, USCIS's guidance on parole in place should not incentivize anyone to violate the immigration laws of the United States and EWI. However, those who are qualifying family members of a military service member or veteran and who are in the United States without having been admitted or paroled should consult with an experienced immigration attorney immediately about applying for parole in place and, ultimately, adjustment of status. An experienced immigration attorney will be able to help the person properly navigate the process for obtaining parole in place and proactively address any complicating factors that the applicant may have.

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  1. As defined in INA § 214(f)(2)(B)
  2. Policy Memo, USCIS, 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), PM-602-0091 (Nov. 15, 2013)
  3. INA § 245(a), § 245(a)(2)
  4. Q&As, Meeting USCIS Field Operations Directorate with AILA (Apr. 10, 2014), published on AILA InfoNet at Doc. No. 14050844
  5. Id.
  6. DHS Memorandum, Jeh Johnson, “Families of U.S. Armed Forces Members and Enlistees,” (Nov. 20, 2014)