Parole

Special Parole Programs, myattorneyusa.com

 

Introduction to Parole

An alien may be granted parole in order to enter the United States. A parolee is eligible to apply for and be granted adjustment of status [see article] so long as he or she remains in the United States as a parolee (and is not otherwise ineligible to adjust status). 1 However, while a person is considered to be lawfully present when he or she is on parole, parole does not constitute “admission” to the United States, and it may be revoked at any time. In this article, we will provide a general overview of parole and some of the different situations in which it may be granted.

Statutory Basis for Parole

Section 212(d)(5)(A) of the Immigration and Nationality Act (INA) [codified as 8 U.S.C. 1182(d)(5)(A)] [PDF version] contains the provisions allowing for parole into the United States. The statute provides that the Attorney General, on a case-by-case basis, may parole an alien who is applying for admission into the United States for:

Urgent humanitarian reasons; or
Significant public benefit.

Persons who enter without inspection (EWI) may also benefit from parole because persons who EWI are considered applicants for admission.2

An alien who is not obviously admissible at the border may be granted parole to enter the United States temporarily in the discretion of an immigration officer.

The statute is clear that parole does not constitute “admission” into the United States, and parole may be revoked at any time if the Attorney General decides that the purpose of the parole has been fulfilled. However, an alien maintaining parole status will not accrue unlawful presence [see article] so long as he or she does not violate the terms of parole or does not become subject to a final order of removal. A parolee must depart before his or her parole expires in order not to accrue unlawful presence. However, he or she may also apply for re-parole in advance of the expiration of parole.

Parole is automatically terminated when a parolee departs the United States.

The statute also states that the Attorney General may not parole an alien who is a refugee into the United States unless the Attorney General determines that there are compelling reasons in the public interest that support paroling the alien into the United States rather than admitting him or her as a refugee.

Termination of Parole

If parole is terminated, the alien will again be considered an applicant for admission.

Parole terminates automatically and without written notice when a parolee departs the United States or when the time for which parole was authorized expires.3

Parole may also be terminated when either the purpose of the parole is deemed to have been fulfilled or when neither humanitarian reasons nor the public benefit warrants the continued presence of the alien in the United States.4 In these cases, parole is terminated upon written notice to the alien, at which point he or she is restored to the status held prior to being granted parole.5 If a previous order of exclusion, deportation, or removal is to be executed, but cannot be executed within a reasonable time, United States Citizenship and Immigration Services (USCIS) regulations require that the alien must be released from immigration detention [see category] on parole unless the public interest requires that he or she be kept in custody.

If an alien is granted parole after the enactment of the Immigration Reform and Control Act of 1986 for any reason besides applying for adjustment of status under section 245A of the INA, and then subsequently applies for adjustment of status under section 245A while on parole, he or she will be subject to termination of parole status (upon notice) and to detention and removal proceedings.

Parole and Expedited Removal Detention

8 C.F.R. 212.5(b) [PDF version] contains a list of situations in which parole for aliens who would otherwise be detained pending expedited removal proceedings is generally justified on a case-by-case basis for “humanitarian reasons” or “significant public benefit”:

1. Aliens with serious medical conditions for whom detention would be inappropriate;
2. Women who have been medically certified as pregnant;
3. Certain aliens who are identified as juveniles; 6
4. Aliens who will be witnesses in proceedings conducted by judicial, administrative, or legislative bodies of the United States;
5. Aliens whose continued detention is found not to be in the public interest.

Moreover, if the alien is determined to have a credible fear of persecution or torture after a credible fear interview, he or she will have a lower bar for establishing eligibility for parole:

1. Must establish identity;
2. Must demonstrate that he or she is not a flight risk;
3. Must demonstrate that he or she is not a danger to the community;
4. Must meet any other discretionary concerns if they arise. 7

To learn more about parole for aliens who are in detention and facing expedited removal, please read our full article about expedited removal [see article].

Humanitarian Parole

Both statute and regulations allow for parole to be granted for “humanitarian reasons.” Anyone may apply for humanitarian parole, although humanitarian parole will not be granted so that an alien may circumvent normal immigration procedures. Humanitarian parole is most commonly granted for urgent medical reasons, for children under the age of 16 in need of family reunification, or for children with medical needs. To learn about applying for humanitarian parole, please read our full article.

Conditional Parole

An alien who is detained pending a determination on his or her removability may be granted conditional parole by Immigration and Customs Enforcement (ICE). 8 An alien on conditional parole is ineligible for employment authorization (unless he or she is a lawful permanent resident or would otherwise be eligible).9 Furthermore, an alien will continue to accrue unlawful presence while released on conditional parole. The Board of Immigration Appeals (BIA) held in Matter of Castillo-Padilla [PDF version] that an alien released on conditional parole is ineligible to apply for adjustment of status. 10

Parole and Adjustment of Status (and Advance Parole)

Parolees (other than conditional parolees) are eligible to file for adjustment of status [see article].

If a person with a pending adjustment of status application departs the United States without advance permission, the adjustment of status application will be considered to be abandoned unless he or she returns in L1 [see article], H1B [see article], K3, K4, or V visa status.11

However, an alien with a pending adjustment of status application may receive advance permission to leave.12 This is called “advance parole.” If granted, the alien will be able to leave the United States with the expectation that he or she will be paroled back in upon return. However, even with that expectation, the decision to allow the alien to reenter as a parolee is discretionary. An alien may only be granted advance parole while he or she is present in the United States.13 Returning and being paroled into the United States after being granted advance parole will not trigger either the 3 or 10-year bar of inadmissibility.14 To read about traveling on advance parole with adjustment of status pending and the important Matter of Arrabally and Yerrabelly [PDF version] decision, which set the precedent that returning on advance parole does not trigger the 3 or 10-year inadmissibility bars, please follow this link. Certain adjustment of status applicants may apply for employment authorization along with advance parole and, if approved, obtain a dual employment authorization and advance parole card.

Parole in Place

USCIS may grant “parole in place” to a person who is in the United States after EWI so that he or she may apply for adjustment of status. This is primarily granted to family members of active duty or former military service members and is seldom used otherwise. To learn more about parole in place, please follow this link in order to read our full article.

Parents or Children of those Granted Cancellation of Removal or Suspension of Deportation

The child of an alien who was granted cancellation of removal [see article] or suspension of deportation may be paroled into the United States until his or her status is adjusted. The same applies for the parent of a child granted cancellation or suspension.15

Other Special Parole Programs

USCIS, ICE, and Customs and Border Protection coordinate a variety of special parole programs. They provided a non-exhaustive list of these programs in a 2008 Memorandum of Understanding [PDF version] 16 between the three agencies (the agency that administers each program is listed along with the program):

  1. Urgent medical, family, and related needs: USCIS
  2. Moscow Refugee Parole Program: USCIS
  3. Several Cuban Parole Programs [see section];
    • a. Special Cuban Migration Parole Program issued at U.S. Interest Station (USINT) Havana (Lottery; CP-2/5): USCIS
    • b. Cuban Family Reunification Program issued at USINT Havana (CFRP; CP-1): USCIS
    • c. Cuban family of immigrant-visa bearers, issued at USINT Havana (CP-3): USCIS
    • d. Cuban Medical Professional Parole (CMPP): USCIS
    • e. Cuban paroles from the U.S. Naval Station at Guantanamo, Cuba: USCIS
  4. Parole for participation in administrative, judicial, or legislative proceedings or investigations including confidential informants, persons involved in extradition and persons involved in civil proceedings
    • a. Individual necessary for prosecution or investigation in the United States: ICE
    • b. Confidential Informant from overseas with a specific credible threat: ICE
    • c. Extradition of an individual to the United States: ICE
    • d. Aliens who will participate in civil proceedings where all parties are private litigants: USCIS
  5. Section 7 paroles under 50 U.S.C. 403(h) [PDF version] [for persons for whom it is determined that admitting for permanent residency is in the national security interest of the United States]: ICE
  6. Trainees: ICE
  7. Intelligence purposes
    • a. If the individual is a registered source member of the U.S. Intelligence Community and the parole furthers the mission: ICE
    • b. If the parole application is submitted or recommended by the Department of State Cooperative Threat Reduction Program or by the Intelligence Community: ICE
  8. In Transit Persons (paroled to travel through the United States en route to legal proceedings in a third country): ICE
  9. Participants in events hosted by international organizations within the United States: ICE

If an arriving alien believes that he or she may qualify for one of these special parole programs, it is essential to contact an experienced immigration attorney for an assessment and ultimately for assistance in filing the request with the correct agency.

Conclusion: Overview of Parole

Parole has many uses in immigration law. To read about parole in specific situations in greater detail, please use the links in this article to read the corresponding full articles.

Parole is generally granted and revoked at the discretion of immigration authorities. For any immigration situation involving parole, an alien should consult with an experienced immigration attorney to determine whether seeking parole is appropriate, and for guidance with regard to adhering to the terms of parole and any subsequent steps after parole is granted.

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  1. INA § 245(a)
  2. INA § 235(a)(1)
  3. 8 C.F.R. § 212.5(e)(1)
  4. 8 C.F.R. § 212.5(e)(2)(i)
  5. Id.
  6. Situations where parole may be granted for 8 C.F.R. § 212.5(b)(3) include: (i) juveniles who may be released to a relative (brother, sister, aunt, uncle, or grandparent) who is not in detention and who is willing to sponsor the minor; (ii) if no relative outside of detention is available to sponsor the minor, he or she may be released with an accompanying relative who is also in detention; (iii) USCIS may, on a case-by-case basis, opt to release a minor in detention with a non-relative who accompanied him or her on arrival.
  7. Memo, Morton, Asst. Sec. ICE, Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture (Dec. 8, 2009)
  8. INA § 236(a)(2)(B)
  9. INA § 236(a)(3)
  10. Matter of Castillo-Padilla, 25 I&N Dec. 257 (BIA 2010)
  11. 8 C.F.R. §§ 245.2(a)(4)(ii) & 245.2(a)(4)(ii)(C); in the case of an H1B or L1 beneficiary, the beneficiary must be returning to continue work for the same employer.
  12. 8 C.F.R. § 212.2(f)
  13. El-Hadid v. U.S., 377 F.Supp.2d 42, 48-49 & n.6 (D.D.C. 2005)
  14. Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012)
  15. INA § 240A(b)(4)
  16. MOA between USCIS, ICE & CBP, Coordinating the Concurrent Exercise By USCIS, ICE and CBP of the Secretary's Parole Authority Under INA § 212(d)(5)(A), (Sept. 2008)

Resources and Materials:

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: ALIA Publications, 2014. 62, 120, 185-86, 192, 197-98, 401, 1140, 1166, 1371. Print. Treatises & Primers.