USCIS has finally released a long awaited policy memo about “Parole in Place” or PIP. PIP is a procedure that permits qualifying family members who entered the U.S. without inspection (EWI), who ordinarily would need to leave the US to process a family based green card abroad, to be able to apply for green cards (adjustment of status) in the U.S., provided USCIS agrees to “parole” the individual. At this Seattle immigration law firm, we have worked on these cases before, and have found the experience helping our military service members to keep their families together quite rewarding.
The general rule is that to apply for adjustment of status in the US, the applicant must have been “inspected and admitted or paroled.” Admission occurs when a foreign national presents a passport with a visa (or no visa if from a visa exempt country) to a US Customs and Border Protection officer (CBP) at a port of entry. The individual is thereby “inspected and admitted” if allowed to proceed into the USA. There are some limited additional “admissions” scenarios for some wave-through type cases, but even these still require that the individual is presented for inspection and is deemed admitted.
Parole is a legal fiction that permits an individual seeking admission at a port of entry to be legally allowed into the US without having been deemed admitted. In other words, the person is deemed still requesting admission or “arriving”, but is given a legal status called parole without having been formally admitted. Thus, ability for a person who entered EWI to get PIP can be extremely advantageous enabling the individual to apply for adjustment of status rather than consular processing a case. For many individuals who entered EWI, they would otherwise be subject to a three or 10-year bar to return and would need a waiver to re-enter earlier than that.
The US Defense Department (DOD) views the troops’ morale and military readiness to be a significant and highly important objective of military preparedness. This includes ensuring that troops are as emotionally prepared and are as stress free as possible so they can focus on their service related jobs. The purpose of PIP is “to minimize periods of family separation, and to facilitate adjustment of status within the United States by immigrants who are the spouses, parents and children of military members.” Servicemen and women, who have family issues such as the threat of deportation to family members, can be extremely stressed out and can suffer from various hardships that impact their military preparedness.
Until the new PIP memo issued on November 15, 2013, (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)), adjudication of PIP requests varied around the country. Some local district USCIS offices did not acknowledge PIP at all; many offices had different procedures and outcomes; offices varied as to applicability to active duty versus veterans, and active duty versus Ready Reserves service. The new memo now provides some continuity of policy for all districts to follow. (However, policy memos technically do not have the force of law. Further, the government tends to rely on policy memos when it wants to and ignores them at other times.) The PIP policy memo also reflects President Obama’s practice of using policies and regulations to fix important immigration issues within the bounds of existing statutory rules where Congress has failed to reform immigration laws.
There has always been authority for the discretionary exercise of parole, but it is given infrequently, and the regulation is not worded to apply just to military families. However, USCIS has worked with DOD in the past to help promote military readiness on several fronts, with PIP being just one area.
In the new PIP memo, USCIS acknowledges that PIP can apply to spouses, minor children and parents of military service members. It applies to all branches of the military as well as to those in the Selective Reserve of the Ready Reserves, and it includes former members of the U.S. Armed Forces or Selected Reserve of the Ready Reserve, though it is unclear how for this latter group it will be implemented. The memo further states that PIP is discretionary and is to be applied sparingly. However, spouses, parents and children with active duty or veteran service family members weigh heavily toward a favorable exercise of discretion: “Absent a criminal conviction or other serious adverse factors, parole in place would generally be an appropriate exercise of discretion for such an individual.”
Not only must an applicant for adjustment of status be “inspected and admitted or paroled.” The applicant must also be “admissible,” meaning none of the grounds of inadmissibility apply. Since most individuals who entered EWI are subject to at least one of the unlawful presence grounds of inadmissibility, the ability to be granted PIP does away with the prior ground of inadmissibility: “An alien who entered the United States without inspection, but subsequently receives parole, is not inadmissible under either of the two inadmissibility grounds contained in section 212(a)(6)(A)(i).”
The memo states further:
Parole does not erase any periods of prior unlawful status. Thus, an alien who entered without inspection will remain ineligible for adjustment, even after a grant of parole, unless he or she is an immediate relative [parent, spouse or minor unmarried child under 21] or falls within one of the other designated exemptions. Moreover, even an alien who satisfies all the statutory prerequisites for adjustment of status additionally requires the favorable exercise of discretion.
Previously, applicants have had to show some type of hardships to the service member, and in some jurisdictions impending or actual deployment. The memo does not address either of these elements. However, given that PIP is discretionary and to be issued sparingly, it seems that hardships and deployment may weigh more heavily in the applicant’s favor than other scenarios. Yet the memo also applies to veterans, so it will be interesting to see how USCIS implements the new policy memo in the coming months.
Procedurally, there must be a filed or pending visa petition by the military member and the undocumented relative must apply for PIP from a local USCIS office. If it is granted, then the relative will be able to file for adjustment of status. USCIS offices may still vary as to the office-specific procedures for filing individual applications. Nonetheless, it is really important that USCIS has clarified its PIP policies in writing. Now we will see how it will be implemented nationwide.