Introduction
On August 19, 2019, the United States Citizenship and Immigration Services (USCIS) updated its Policy Manual (PM) with new guidance on employment authorization for parolees [PA-2019-04]. The USCIS deemed the new guidance necessary in light of President Donald Trump’s declarion of a national emergency at the Southwest border and his direction to the Department of Homeland Security (DHS) to grant parole only on a case-by-case basis in accord with the language of section 212(d)(5) of the Immigration and Nationality Act (INA). The guidance supersedes prior guidance for USCIS officers on adjudicating requests for employment authorizations based on parole.
In this article, we will examine the new PM guidance on employment authorization for parolees in the new 10 USCIS-PM B.2 [PDF version].
10 USCIS-PM B.2(A): Employment Authorization for Parolees
The USCIS determined that new guidance on employment authorization for parolees was necessary in light of President Trump’s Presidential Proclamation 9844 of February 15, 2019, titled “Declaring a National Emergency Concerning the Southern Border of the United States” [PDF version]. In Presidential Proclamation 9844, President Trump declared a national emergency at the southern border. Furthermore, on January 25, 2017, President Trump directed the Secretary of Homeland Security “to end the abuse of parole” and to ensure that the parole authority found in section 212(d)(5) of the INA is exercised only on a case-by-case basis and in accord with the statutory factors. Section 11 of Executive Order 13767 of January 25, 2017, “Border Security and Immigration Enforcement Improvements” [PDF version].
In its introduction to the new guidance, the USCIS noted that no alien has a right to be granted parole. Instead, parole may only be granted on a case-by-case basis in a manner consistent with the INA. Parole may only be granted if the USCIS determines that the grant of parole is justified for urgent humanitarian reasons or for significant public benefit. The decision to deny parole is not subject to judicial review. The Secretary of Homeland Security may impose further restrictions on the grant of parole. Parole itself is not a lawful nonimmigrant or immigrant status; instead, a parolee is deemed to be an applicant for admission. The Department of Homeland Security (DHS) may terminate parole when it determines that the purpose of the parole has been accomplished.
10 USCIS-PM 8.2(B): Eligibility for Employment Authorization
Parolees are not employment authorized incident to parole — with the sole exception of international entrepreneur employees under 8 CFR 274a.12(b)(37) [see article]. For this reason, the regulations provide that a parolee must apply for employment authorization and have the application approved in order to lawfully work in the United States. 8 CFR 274a.12(c)(11); 8 CFR 274a.13.
The decision of an officer of the USCIS, U.S. Immigration and Customs Enforcement (ICE), or U.S. Customs and Border Protection (CBP) to grant parole in the matter of discretion does not mean that the foreign national is automatically entitled to a discretionary grant of employment authorization. The USCIS adjudicates applications for employment authorization by parolees on a case-by-case basis. In so doing, the USCIS “tak[es] into account all factors and consider[s] the totality of the circumstances.” The new policy guidance directs “USCIS officers [to] consider the underlying factors and circumstances which served as the bases for the foreign national’s initial parole (or re-parole).” Although the factors and circumstances which served as the basis for granting parole or re-parole are to be considered in adjudicating an application for employment authorization by a parolee, they are not decisive. This is because the decision on employment authorization is a separate discretionary determination from the decision on parole.
The USCIS PM advices that “[t]he exercise of discretion does not mean the decision can be arbitrary, inconsistent, or dependent upon intangible or imagined circumstances.” There is no strict calculation, however, which can be applied in all cases. Instead, the USCIS PM explains that officers should determine whether to grant an employment authorization application by a parolee in the exercise of discretion by (quoted from the PM):
Considering any positive or negative factors relevant to the applicant’s case,
Evaluating the case-specific considerations for each factor,
Avoiding the use of numbers, points, or any other analytical tool that suggests quantifying the exercise of favorable or unfavorable discretion, and
Assessing whether on balance a favorable exercise of discretion is warranted in light of the totality of the evidence including the positive and negative factors.
The foregoing guidelines require USCIS officers to evaluate each parolee employment authorization application on its individual merits in light of the applicable discretionary factors. It specifically provides that USCIS officers should not use any “numbers, points, or any other analytical tool” to determine whether the favorable exercise of discretion is favorable in a particular case.
10 USCIS-PM 8.2(C): Adjudication of Parole-Based Employment Authorization Applications
The USCIS PM provides USCIS officers with guidance on positive and negative discretionary factors for adjudicating parole-based employment authorization applications. In each case, a USCIS officer will consider the positive and negative factors in coming to a decision on whether to grant a parole-based employment authorization application. For guidance purposes, the USCIS PM provides officers with a non-exhaustive list of favorable and unfavorable discretionary factors to weigh in the general case. How heavily any particular factor weighs, if at all, will depend on the facts of a particular case. Factors other than those listed may also be relevant in certain cases.
Favorable Factors (Quoted from PM)
The emergent nature of the event or circumstances that necessitated the foreign national’s parole that is dependent on work authorization
The length of time authorized for parole (for example, over 1 year) and conditions placed on parole
If the foreign national is the primary caregiver or source of financial support for a spouse, parent, or child with significant and debilitating health conditions
Any prior time periods the foreign national has been lawfully in the United States
If the foreign national is assisting (or will assist) the federal government in a criminal investigation or prosecution of significant duration
If the foreign national is the spouse, parent, or child of a U.S. citizen; or the foreign national is a member of the U.S. Armed Forces or in the Selected Reserve of the Ready Reserve and is currently serving on active duty, or, if discharged, served honorably
An alien who has been granted parole for a long duration may be more likely to be granted employment authorization than an alien whose parole is for only a brief period. The examples suggest that an alien whose parole will last for more than one year may be more likely to merit the favorable exercise of discretion. In establishing a need for employment authorization, an alien may provide evidence of emergent circumstances or that his or her immediate family members require financial support. The guidelines specifically note that the USCIS may look more favorably upon the application if the parolee is the immediate relative of a member of the military. A parolee who is in the country to assist with a criminal investigation of significant duration may be more likely to be granted parole. Finally, the factors suggest that if the parolee had previously maintained a lawful nonimmigrant or immigrant status in the United States, he or she may be more likely to be granted parole-based employment authorization.
Unfavorable Factors (Quoted from PM)
Any criminal history, especially serious crimes or felonies
The length of time authorized for parole (for example, less than 1 year)
If the foreign national violated the terms of his or her parole
The nature and severity of any prior violations of the immigration laws, including illegal entries and unauthorized employment
The length of time the foreign national was or has been in the United States without lawful presence, with shorter periods of time being more unfavorable
Grounds of inadmissibility or removal that may apply to the parolee that may be considered unfavorable factors
Fraud or material misrepresentations to obtain an immigration benefit
Lying or making a material misrepresentation to any immigration or consular officer or employee while such officer or employee is performing his or her official duties under the law
Whether the foreign national has a final order of removal or is subject to reinstatement of such order
Whether the foreign national is a national security or public safety risk as evidenced by arrests and criminal convictions
Generally, an alien who is granted parole for a short period, such as less than one year, may be less likely to establish the need for employment authorization. The more specific factors are related to violations of the immigration and criminal laws. Unsurprisingly, an alien who violates the terms of his or her parole will be less likely to be granted discretionary employment authorization based on such parole. Prior violations of the immigration laws, including, specifically, fraud or misrepresentation, will be weighed as negative factors. Any periods of time the alien spent in the United States out of a lawful status will be counted against his or her application for parole-based employment authorization. An alien’s criminal history, where applicable, may also be considered a negative factor, especially where the alien represents a risk to public safety.
Serious Negative Factors (Quotes from PM)
A foreign national who has a final order of removal or who is subject to reinstatement of such an order;
A foreign national who has been convicted of an aggravated felony;
A foreign national who has been convicted of any felony;
A foreign national who has been charged with or convicted for any criminal offense involving domestic violence or assault;
A foreign national who has been charged with or convicted for any criminal offense involving child abuse, neglect, or sexual assault;
A foreign national who has been charged with, arrested, and or convicted for any criminal offense involving illegal drugs or controlled substances;
A foreign national who has been charged with or convicted of driving under the influence or driving while intoxicated;
A foreign national who has lied or made a material misrepresentation to any immigration or consular officer or employee while such officer or employee is performing his or her official duties under the law.
The list of “serious negative factors” is non-exhaustive. The PM instructs consular officers to weigh them “heavily” against the favorable exercise of discretion. The serious negative factors are not, however, automatic bars to employment authorization. In some cases, extremely positive equities may outweigh serious negative factors such that the alien merits the favorable exercise of discretion for employment authorization. Most of the criminal- and immigration-related serious negative factors would generally carry dire immigration consequences. The PM’s specifying driving under the influence or driving while intoxicating is noteworthy.
10 USCIS-PM 8.2(D): Employment Authorization Validity Period
If the USCIS grants a parole-based employment authorization application, it may establish a specific validity period for such employment authorization. The PM states that officers should generally grant employment authorization for the period of the alien’s underlying parole authorization, which is usually not in excess of one year. Foreign nationals who are re-paroled must apply for new employment authorization. The USCIS may, in its discretion, grant employment authorization for a shorter period than the alien’s parole authorization.
Conclusion
A noncitizen may be granted parole for any number of reasons and purposes. Because of the myriad circumstances of parolees, it is impossible to create any one rule or set of factors for parolees seeking employment authorization. Instead, the USCIS guidance provides general factors for all cases, some of which may weigh more heavily in one case than another. A parolee who wants to work in the United States should consult with an experienced immigration attorney for case-specific guidance, taking into account his or her entire immigration situation. Parolees for certain purposes may benefit from retaining an immigration attorney for other matters as well.
