Category Archives: immigrant visa

The Perils of Fixing Broken U.S. Immigration System with Patchwork of Rules and Regulations, Instead of Congressional Action

U.S. immigration is among the top issues for voters in the upcoming November 2024 elections, with border security being a major concern and millions of undocumented spouses and stepchildren of U.S. citizens remaining in the U.S. with no easy path to permanent residence. 

For decades – across various Administrations – Democrats and Republicans have blamed each other for failing to address deep-rooted problems in the U.S. immigration system. The last major reform bill was The Immigration Reform and Control Act (IRCA) passed by the 99th Congress and signed into law by President Ronald Reagan on November 6, 1986.

In the meantime, each Administration has sometimes resorted to a patchwork of rules, regulations and policies to bypass Congress in fixing a specific problem. When new relief is created to shield particular groups from deportation with grants of authorized stay and work permits, it is subject to being questioned over its legality. Extreme polarization and partisanship have made the problem worse. 

The latest relief under attack is the Parole in Place program for Keeping Families Together, announced by the Biden-Harris Administration in June and implemented on August 9 through federal rule.

It offers a path to certain undocumented spouses and stepchildren of U.S. citizens – who came to the U.S. without inspection and admission – to apply for permanent residence inside the United States. Otherwise, under decades-old statutory law, they must depart for Immigrant Visa processing at a U.S. Consulate or Embassy abroad. 

A departure carries risks because it triggers the 3/10-year bar to reentry to the United States, if the applicant accrued “unlawful presence” of more than 180 days. The unlawful presence begins once the applicant turns age 18 and remains in the U.S. with no authorized stay or lawful nonimmigrant status. Without an approved Form I-601 or I-601A waiver of the unlawful presence bar, the Immigrant Visa cannot be issued during the 3/10-year period. 

On August 9, USCIS began accepting Parole in Place (Keeping Families Together) applications through online filing of the new Form I-131F and supporting documents. Reportedly, some applications were approved within a few days. But within two weeks of the rollout, Republican attorney generals in 16 U.S. states filed a lawsuit, on August 23, with the U.S. District Court of Texas, Eastern District of Texas, challenging the legality of the program.

Three days later, on August 26, U.S. District Judge J. Campbell Barker issued an order granting the Plaintiffs’ request for a temporary restraining order and stay of the program’s implementation for 14 days. The court noted this is renewable for good cause or upon consent, through mid-October.

The court also confirmed the DHS (USCIS) may continue to accept Form I-131F applications, even though adjudications or approvals are on pause. It further entered an expedited scheduling order for the discovery process, in which the Plaintiffs will have to address factual matters that bear on their standing (i.e. their right to sue). 

The lawsuit should have been no surprise to the DHS and the Biden-Harris Administration.

It’s not clear why they waited until June to announce the program, which was just a few months before the November 2024 elections.  The timing gives the Plaintiff States more reason to argue it was introduced for “blatant political purposes,” as they did in their complaint. 

It’s uncertain whether the Parole in Place program will suffer a similar fate as the Obama-era Deferred Action for Child Arrivals (DACA) policy. Initially created by Executive Action (Policy Memorandum) in 2012, DACA basically provides work permits and authorized stay to certain undocumented immigrants who were brought to the United States as children.

In September 2017, DHS terminated the DACA program under the Trump Administration by a short memorandum. In a June 18, 2020, decision, the U.S. Supreme Court ruled (5-4) that DHS’ recission of DACA violated the Administrative Procedure Act because it did not give a reasonable explanation for its action. The Supreme Court did not rule on the legality of DACA, which made it subject to future litigation. 

On July 26, 2021, the U.S. District Court for the Southern District of Texas granted a permanent injunction ordering DHS to stop granting initial DACA requests.  The presiding U.S. District Judge, Andrew Hanen, held the program was unlawful.

Then on October 6, 2022, the U.S. Court of Appeals for the Fifth Circuit upheld the federal district court’s decision, finding that the 2012 version of the DACA policy violated the Administrative Procedures Act. It declined to review the DACA Final Rule issued by the Biden-Harris Administration in August 2022, which was meant to cure the procedural deficiencies of the 2012 Policy Memorandum. Instead, the court remanded the issue back to the federal district court.

On September 13, 2023, U.S. District Judge Hanen determined the 2022 DACA Final Rule was not materially different from the 2012 DHS policy implementing DACA. He found the DACA Final Rule unlawful and expanded his original July 2021 injunction, which prohibits the adjudication and approval of new DACA requests and related applications for work permits (employment authorization) and advance parole (travel document). 

Currently, USCIS is adjudicating and approving only DACA renewal requests that are not affected by the July 2021 injunction. Although it is accepting initial DACA requests, it is prohibited from approving them so long as the injunction remains.

On the campaign trail, in political ads, and at the DNC and RNC (national party) conventions, the Harris-Walz and Trump-Vance teams have attacked each other for failing on U.S. immigration issues. 

In her DNC speech, VP Harris said, “Last year, Joe (Biden) and I brought together Democrats and conservative Republicans to write the strongest border bill in decades.”

The $118 billion bipartisan bill (“Emergency National Security Supplemental Appropriations Act, 2024”) failed in the Senate after it was opposed by all but four Republicans and a few Democrats. It included $20.23 billion to address current operational needs and increase capabilities at the borders, such as building border barriers, expanding detention facilities, and hiring more Immigration and Customs Enforcement and Border Patrol agents, asylum officers and immigration judges to reduce the years-long backlog in asylum cases.

Additionally, the bill included funding for fentanyl and human trafficking, as well as $60 billion in aid for Ukraine and $14 billion for assistance to Israel. A summary of the bill is here and the text of the bill is here

In an exclusive CNN interview on August 29, VP Harris said Trump “killed the bill” for political reasons by telling his “folks in Congress” to not put it forward. But Trump is not the sitting U.S. President, and the deeper question is whether the Senate would support the bill if she became the U.S. President. The divisiveness on U.S. immigration issues has existed long before the Trump Administration and his current Presidential run.

In a social media post on Truth Social, Trump noted,” We need a separate Border and Immigration Bill. It should not be tied to foreign aid in any way, shape, or form!”

Trump also criticized the bill for giving Shutdown Authority after 5,000 encounters a day at the border. He wrote, “…we already have the right to CLOSE THE BORDER NOW, which must be done.” The bill stated temporary border emergency authority would be automatically activated by the DHS Secretary if there is an average of 5,000 or more migrant encounters a day over seven consecutive days — or if there are 8,500 or more such encounters on any single day.

The threshold does not reflect the number of persons allowed to enter the U.S. without proper travel documents. Rather, once there is mandatory activation of the Shutdown Authority, undocumented immigrants would not be considered for asylum, which is their most common relief to enter the U.S.

Under existing law, applicants subject to expedited removal at a U.S. port of entry may be considered for asylum if they show a credible fear of persecution or torture in their country. If they pass the credible fear interview and initial screening with an asylum officer, they may seek asylum at an Asylum Merits Interview with a USCIS officer or at a removal hearing with an Immigration Judge.

Obtaining asylum requires applicants to show they have suffered past persecution or have a well-founded fear of future persecution in their country, on account of their race, religion, nationality, membership in a particular social group, or political opinion. Poor country conditions such as widespread poverty or gang violence, by themselves, do not make the person eligible for asylum. A high number of asylum requests at the border add to the already long processing times for asylum applications, which can take several years.

On June 4, the White House issued a Proclamation on Securing the Border (executive order) preventing migrants from seeking asylum at the U.S.-Mexico border when the seven-day average of unauthorized crossings exceeds 2,500. President Biden said this measure was to “gain control” of the border. He noted, “The Congress’s failure to deliver meaningful policy reforms and adequate funding, despite repeated requests that they do so, is a core cause of this problem.”

The 2024 legislation – which VP Harris referred to in her DNC speech – is not the strongest border bill in decades, if you count the 2013 “Border Security, Economic Opportunity, and Immigration Modernization Act” passed in the Senate by a 68 to 32 margin. It was not considered by the Republican-controlled House and died in the 113th Congress.

At the RNC, Republicans called VP Harris the “border czar” who failed to oversee U.S. border enforcement. The Harris campaign points out that she was never responsible for securing the border and this is the job of the U.S. Department of Homeland Security. While this is true, enforcement priorities largely depend on White House policies.

It was really the media (including CNN) that initially gave Harris the “border czar” label, after she was put in charge of addressing the “root causes” of migration at the U.S.-Mexico border, through diplomatic efforts.

The effects of VP Harris’ diplomatic work in Mexico, Guatemala, El Salvador and Honduras were limited, in part because the sources of and reasons for migration have expanded. In fiscal year 2021, for example, there were stark increases in migrant encounters with persons from Ecuador, Brazil, Nicaragua, Venezuela, Haiti and Cuba at the southern border. The humanitarian parole program allows persons from some of these countries to stay in the U.S. for two years if they have a qualified sponsor.

A mass deportation plan presents logistical challenges and humanitarian concerns and will increase pressure on the overloaded U.S. immigration system. Due process requires that undocumented immigrants – already inside the United States with no prior, unexecuted removal order – be given an opportunity to appear in Immigrant Court for possible relief from removal. With years of existing backlog in the Immigration Courts, starting with “one million” for mass deportation (as Vance proposes), will do very little to cure the problem.

Both sides have used U.S. immigration issues for political gains. They involve highly controversial matters with no simple, apolitical fixes. And neither party seems truly capable of (or fully committed to) bipartisan efforts that tackle U.S. immigration problems on all critical fronts.

Texas Federal Court Pauses Parole in Place Program for Undocumented Spouses and Stepchildren of U.S. Citizens

As of August 26, USCIS has paused the granting of Applications for Parole in Place for Noncitizen Spouses and Stepchildren of U.S. Citizens. Due to a court order from the U.S. District Court, Eastern District of Texas, USCIS may not approve or adjudicate Form I-131F, PIP applications, although it is still accepting them.

In Texas v. Department of Homeland Security, Case Number 24-cv-306, the court administratively stayed DHS from granting PIP under Keeping Families Together for 14 days. The court may extend the period of this administrative stay for additional periods through mid-October.

The court order resulted from Plaintiff States requesting a temporary restraining order and stay of agency action to roll out the program.

On August 23, Republican attorney generals in 16 U.S. states, led by Texas, filed a complaint in the federal district court stating the program is an unlawful agency action.

The Plaintiffs note that statutory law under 8 U.S.C. 1182(d)(5) allows the DHS Secretary to grant parole in very limited situations. The plain text of the statute reads, “on a case-by-case basis for urgent humanitarian reasons or significant public benefit for any alien applying for admission into the United States.” The Plaintiffs add that parole is meant for an individual who is seeking admission from outside the U.S., and is not intended to be given, en masse, to groups who are inside the U.S.

In the lawsuit, the Plaintiffs claim the program will create financial harm to the States and encourage illegal immigration. They say the Biden-Harris Administration created the program for “blatant political purposes.” It was announced in June and implemented in August, just a few months before the November elections.

The Plaintiff States argue the number of parolees will lead to increased costs relating to law enforcement, State benefits (such as Medicaid, SNAP-food stamps and TANF-welfare payments) and health care coverage (such as CHIP-Children’s Health Insurance Program).

The court provided 60 days for the discovery process in litigation. During this period, Plaintiff States will need to address factual matters that bear on their standing (i.e. whether the program will cause actual harm as they claim).

Although PIP applicants might add to State expenses, they tend to also contribute to the States. They must have continuously resided in the U.S. for at least 10 years and show positive factors, such as compliance with federal and state tax laws.

The Biden-Harris Administration responded to the federal court’s order with a written Statement from President Biden on August 27. It reads:

“Nothing I did changed the requirements people have to meet to adjust their status under immigration law. All I did was make it possible for these long-time residents to file the paperwork here – together with their families. But without the Keeping Families Together process, spouses of U.S. citizens won’t be able to stay in the U.S. while they obtain the long-term legal status for which they’re already eligible. They’ll be forced to either leave their families in America, or live in the shadows in constant fear of deportation.”

While there is truth in this Statement, it does not give a full picture.

Undocumented immigrants who are in the U.S., without status, are indeed subject to being placed in removal proceedings. But unless they have a serious criminal record or other egregious violations, unlawful presence alone does not usually make them a high priority for deportation.

In general, the DHS U.S. Immigration & Customs Enforcement lacks the resources to target spouses and stepchildren of U.S. citizens who pose very little harm to the community. Moreover, due process allows eligible applicants to apply for relief from removal in Immigration Courts, which are heavily backlogged with millions of pending cases. With family unity being a bedrock of U.S. immigration, mass deportation is an unworkable and unpopular solution.

Under current U.S. immigration laws and policies, applicants often stay in the U.S. with their families, without status, until they are scheduled for an Immigrant Visa appointment.

Applicants begin to have “unlawful presence” in the U.S. if they are over age 18 and have no lawful nonimmigrant status or authorized stay. If they accrue unlawful presence of more than 180 days to less than 1 year (prior to being placed in removal proceedings), a departure from the U.S. triggers the 3-year bar to re-entry to the United States. If the unlawful presence lasted for 1 year or more, the bar to re-entry is 10 years.

Without a Form I-601 or I-601A waiver of the unlawful presence bar (extreme hardship waiver), the applicant will not receive the Immigrant Visa before the 3/10-year bar expires.

To receive the waiver, the applicant must prove he has a U.S. citizen or permanent resident spouse or parent who will face “extreme hardship” if he is not admitted to the United States. This carries a high evidentiary burden of proof. Furthermore, the current USCIS processing times are long and may take 1 to 3 years.

With the Form I-601A process, however, they may apply for the unlawful presence waiver ahead of the Immigrant Visa interview, while they are still in the U.S. The Immigrant Visa interview is not scheduled until after the I-601A waiver is granted.

Parole in Place opens a path to adjust status, which some applicants would not otherwise have. It allows certain undocumented spouses and stepchildren of U.S. citizens – who entered the U.S. without lawful inspection and admission – to apply for permanent residence inside the United States. Without lawful admission or parole, they are ineligible for INA 245(a) adjustment of status and must apply for an Immigrant Visa at the U.S. Consulate or U.S. Embassy abroad.

Because lawful admission or parole is required for INA 245(a) (Form I-485) adjustment, millions of undocumented spouses and stepchildren of U.S. citizens remain in the U.S. without immigrant status. If they accrue unlawful presence of more than 180 days, the consequences become more severe. Even with no criminal record and an approved Form I-130 immigrant petition, they will be stuck outside the U.S., for 3 or 10 years, if they depart and have no Form I-601 or I-601A waiver to get the Immigrant Visa.

USCIS had been quickly approving Form I-131F applications until the court order paused the program. The approvals were reportedly for eligible applicants who have reusable biometrics (fingerprints) on file.

The court order does not affect Form I-131F applications that have already been approved. At this time, it is uncertain whether USCIS will issue biometrics appointment notices for new applicants or for applicants whose cases are still pending.

While a grant of Parole in Place provides authorized stay and allows the applicant to request a work permit or a travel document, it does not automatically lead to a green card or immigrant status.

In addition, permanent residence is not the same as U.S. citizenship. Becoming a naturalized U.S. citizen has more requirements, including 3 or 5 years of continuous residence in the U.S. as a permanent resident, good moral character, basic English skills, and knowledge of U.S. history and government.

If you are not eligible for Form I-485 adjustment to permanent residence due to certain criminal offenses, a prior removal order, an illegal re-entry to the U.S., or other serious violations, you may incur more risks than benefits from Parole in Place. The most important reason to apply for Parole in Place is that you otherwise qualify for adjustment to permanent residence, except for meeting the lawful admission requirement.

For more information on the benefits and limitations of Parole in Place, the eligibility requirements, and the filing process, see:

Parole in Place Plan Will Allow Certain Undocumented Spouses and Children of U.S. Citizens to Get Green Cards Through I-485 Adjustment, Instead of Consular Processing

USCIS Expected to Start Accepting Parole in Place Applications on August 19

USCIS Implements Form I-131F, Application for Parole in Place for Certain Undocumented Spouses and Stepchildren of U.S. Citizens

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UPDATE AS OF 11/8/2024: On November 7, 2024, a Texas federal judge blocked the Keeping Families Together program. The court found that Texas and other states had standing to challenge the program and vacated the parole-in-place plan for certain spouses of U.S. citizens as unlawful. (State of Texas et al., v. DHS et al., 11/7/24) In a final judgment, the judge stated that, “The court declares that defendants lack statutory authority under 8 U.S.C. § 1182(d)(5)(A) itself (as opposed to under other provisions modifying or supplementing that authority) to grant parole “in place” to aliens, as that term is used in the final agency action published at 89 Fed. Reg. 67,459 (Aug. 20, 2024) (“Implementation of Keeping Families Together”), or to deem parole “in place” as used there to be parole “into the United States” for purposes of 8 U.S.C. § 1255(a). That agency action is hereby set aside and vacated pursuant to 5 U.S.C. § 706(2).”

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The Legal Immigrant provides general information only from Dyan Williams Law. It is based on U.S. immigration laws, regulations and policies that are subject to changeDo not consider it as legal advice. The sharing or receipt of this information does not create an attorney-client relationship.

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USCIS Implements Form I-131F, Application for Parole in Place for Certain Undocumented Spouses and Stepchildren of U.S. Citizens

On August 19, the Department of Homeland Security (DHS) implemented the Form I-131F, Application for Parole in Place for Certain Noncitizen Spouses and Stepchildren of U.S. Citizens. This allows certain spouses and stepchildren of U.S. citizens – who did not enter the U.S. lawfully – to apply for permanent residence within the U.S., instead of needing to depart for Immigrant Visa processing.

USCIS is now accepting Form I-131F applications for Parole in Place. Although it’s a path to permanent residence through Form I-485 adjustment, it does not automatically lead to it. The future of this program is also uncertain because it was introduced by federal rule under the Biden Administration, not by Act of Congress, and is subject to legal challenges in federal courts.

The eligibility criteria, application process, and examples of required evidence are published in the Federal Register notice, dated August 20, 2024.  More information is in USCIS’ Filing Gude for Form I-131F, and USCIS’ Frequently Asked Questions About Keeping Families Together.

Who Benefits from the Parole in Place Program?

The Parole in Place program is intended to benefit certain green card applicants who:

  • are physically present in the U.S. without inspection and admission or parole;
  • are legally married to a U.S. citizen OR are legally the stepchildren of a U.S. citizen, as of June 17, 2024;
  • have been continuously present in the U.S. for 10 years or more, as of June 17, 2024;
  • do not pose a threat to public safety or national security;
  • are otherwise eligible to apply for adjustment of status; and
  • merit a favorable exercise of discretion.

For U.S. immigration purposes, a “child” is an unmarried person under the age of 21. If the person is a “stepchild”, the marriage between the U.S. citizen and the biological parent must have occurred before the stepchild turned 18.]

Spouses and stepchildren of U.S. citizens who are not physically present in the U.S. as of June 17, 2024, have not been continuously present in the U.S. since June 17, 2014 or earlier, have a serious criminal record that poses a risk of harm to the public or nation, or have negative factors that make them ineligible for or undeserving of adjustment of status will not benefit from this program.

How Does the Parole in Place (Form I-131F) Application Expand Who May Apply for Adjustment to Permanent Residence?

Statutory law under INA 245(a) (8 U.S.C. §1255) allows a nonimmigrant (e.g. F-1 student or H-1B temporary worker) to adjust to permanent residence based on an approved immigrant petition. This involves filing the Form I-485, Application to Register Permanent Residence or Adjust Status, with USCIS, either concurrently with or after the Form I-130 or Form I-140 filing.

An approved or approvable Form I-130 (family-based) or Form I-140 (employment-based) petition does not necessarily mean you qualify for adjustment of status. There are several eligibility requirements to meet for INA 245(a) adjustment.

Except for INA 245(i) and VAWA-based applicants, one key requirement is that you must have been “inspected and admitted or paroled” into the United States. This applies to even “Immediate Relatives” of a U.S. citizen; namely, spouses, unmarried children under 21 years old, and parents (if the U.S. citizen is 21 years of age or older).

Without lawful admission or parole into the U.S., they must leave the U.S. to apply for an Immigrant Visa at a U.S. Embassy or Consulate. Under INA 212(a)(9)(B)(i), a departure from the U.S. triggers a 3-year bar to re-entry if they accrued unlawful presence of more than 180 days to less than 1 year, prior to being placed in removal proceedings. The bar to re-entry is 10 years if the unlawful presence lasted for 1 year or more, regardless of whether removal proceedings occurred.

To receive an Immigrant Visa before the 3/10-year bar expires, they must apply for and obtain a Form I-601 or I-601A provisional waiver from USCIS. To get this waiver of inadmissibility, they must prove they have a U.S. citizen or permanent resident spouse, fiance or parent who will face “extreme hardship” if they are denied the visa and entry to the U.S.

If they were not lawfully admitted to the U.S., spouses and stepchildren of U.S. citizens may choose to stay in the U.S., without status, to avoid triggering the 3/10-year bar. But if they later receive Parole in Place, they will meet one major requirement for I-485 adjustment of status.

Parole in Place Offers Limited Benefits

Parole in Place does not permit the applicant to bypass the normal route to becoming a permanent resident. For example, you still need an approved I-130 petition filed by your U.S. citizen spouse to get a marriage-based green card. If you have an INA 204(c) bar prohibiting the approval of the petition, Parole in Place does nothing to make you eligible for the green card.

Furthermore, if you have an inadmissibility bar, such as INA 212(a)(6)(C)(i) (fraud or willful misrepresentation of material facts to obtain U.S. immigration benefits) or INA 212(a)(2)(A) (certain criminal offenses), Parole in Place does not spare you from obtaining a Form I-601 waiver of inadmissibility to get a green card. You also bear the risk of being detained and removed from the United States if you have an unexecuted removal order and have remained unlawfully in the U.S. after being ordered to depart the country.

What to Submit in Parole in Place (Form I-131F) Application

Eligible applicants who are spouses and stepchildren of U.S. citizens must provide:

Proof of identity

  • Valid State or country driver’s license or identification;
  • Birth certificate with photo identification;
  • Valid passport; or
  • Any U.S. government issued document bearing your name, date of birth, and photo

Proof of your (or your parent’s) legally valid marriage on or before June 17, 2024

  • Current marriage certificate showing a legally valid marriage occurred or before June 17, 2024; and
  • Divorce or annulment decree, or death certificate showing that any prior marriages were terminated (if applicable).

Proof of spouse’s (or stepparent’s) status as a U.S. citizen

  • U.S. birth certificate;
  • Certificate of Naturalization;
  • Certificate of Citizenship;
  • Form FS-240, Consular Report of Birth Abroad; or
  • The biographical page of current U.S. passport.

Proof of continuous physical presence in the United States during the required time period (since at least June 17, 2014, through the date of filing, if requesting parole in place as the spouse of a U.S. citizen, or from June 17, 2024, through the date of filing, if requesting parole in place as the stepchild of a U.S. citizen)

  • Internal Revenue Service tax transcripts listing tax information;
  • Rent receipts or utility bills;
  • Deeds, mortgage statements, or rental contracts;
  • Bank, credit card, or loan statements showing regular transactions;
  • Insurance policies;
  • Automobile license receipts, title, or registration;
  • Hospital or medical records;
  • School records (letters, report cards, etc.);
  • Attestations to your physical presence by religious entities, unions, or other civic or community organizations;
  • Official records from a religious entity confirming your participation in a religious ceremony;
  • Birth certificates for children born in the United States;
  • Money order receipts for money sent into or out of the United States; or
  • Any other document that shows that you maintained your physical presence in the United States.

Proof of your qualifying relationship to your U.S. citizen stepparent (for stepchildren only)

  • Your birth certificate listing the name of your noncitizen parent; and
  • Marriage certificate of your noncitizen parent and U.S. citizen stepparent, showing a legally valid marriage took place on or before June 17, 2024, and before your 18th birthday.

Proof showing you merit a favorable exercise of discretion for parole based on a significant public benefit or urgent humanitarian reasons

Any documents relating to:

  • Community ties;
  • Your particular vulnerability related to advanced or young age;
  • Length of presence in the United States;
  • Existence of a mental or physical condition or illness requiring care or treatment in the United States;
  • Your status as a parent or caregiver of a U.S. citizen child, or elderly parent or in-law;
  • Your status as a caregiver for an individual with disabilities, including a U.S. citizen parent, in-law, or sibling;
  • Your status as a victim or witness of a crime or civil rights violation, or labor rights violation under investigation by a labor agency;
  • Effect on other family members, including family members who are U.S. citizens and lawful permanent residents;
  • Any mitigating factors that relate to the specific criminal conduct or prior removal order at issue; or
  • Other positive factors about which you wish to provide information.

USCIS will weigh the positive and negative factors and decide on Form I-131F applications on a discretionary, case-by-case basis.

Get Proper Legal Advice 

Not all undocumented immigrants qualify for Parole in Place. In addition, there may be risks to applying for any U.S. immigration benefits, especially if you have a prior removal (deportation) order, inadmissibility bar, or criminal record.

The Parole in Plan program is vulnerable to being terminated by federal court order. On June 28, in Loper Bright Enterprises v. Raimondo, the U.S. Supreme Court struck down the Chevron doctrine.  It found that courts may apply their own interpretation of unclear statutes and do not have to defer to federal agencies’ regulations interpreting ambiguous laws.

Although statutory law under INA 212(d)(5) (8 U.S.C. 1182(d)(5) allows parole authority to be exercised, this is only on a case-by-case basis, for urgent humanitarian reasons or a significant public benefit, and for a temporary purpose. Whether the Parole in Place program meets this requirement may be questioned in federal court lawsuits.

Consult an experienced U.S. immigration attorney to discuss whether you qualify for Parole in Place and the pros and cons of filing for this relief.

For more information, see Parole in Place Plan Will Allow Certain Undocumented Spouses and Children of U.S. Citizens to Get Green Cards Through I-485 Adjustment, Instead of Consular Processing.

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The Legal Immigrant provides general information only from Dyan Williams Law. It is based on U.S. immigration laws, regulations and policies that are subject to change. Do not consider it as legal advice. The sharing or receipt of this information does not create an attorney-client relationship.

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USCIS Expected to Start Accepting Parole in Place Applications on August 19

On July 17, 2024, the Biden Administration announced the expected start date for the Parole in Place plan is August 19, 2024. USCIS also published an announcement, Reminders on the Process to Promote the Unity and Stability of Families. It will reject any application filed before August 19.

The Parole in Place plan will allow certain undocumented spouses and children of U.S. citizens to apply for permanent residence within the U.S., instead of needing to depart for Immigrant Visa processing. The Fact Sheet: President Biden Announces New Actions to Keep Families Together provides basic information on the program, which the Administration says will promote family unity.

Who Will Benefit from the Parole in Place Program?

The Parole in Place program is intended to benefit certain green card applicants who:

  • are physically present in the U.S. without inspection and admission or parole;
  • are legally married to a U.S. citizen OR are legally the children or stepchildren of a U.S. citizen, as of June 17, 2024;
  • have been continuously present in the U.S. for 10 years or more, as of June 17, 2024;
  • do not pose a threat to public safety or national security;
  • are otherwise eligible to apply for adjustment of status; and
  • merit a favorable exercise of discretion.
[NOTE: For U.S. immigration purposes, a “child” is an unmarried person under the age of 21. If the person is a “stepchild”, the marriage between the U.S. citizen and the biological parent must have occurred before the stepchild turned 18.]

Spouses and children of U.S. citizens who are not physically present in the U.S. as of June 17, 2024, have not been continuously present in the U.S. since June 17, 2014 or earlier, have a serious criminal record that poses a risk of harm to the public or nation, or have negative factors that make them ineligible for or undeserving of adjustment of status will not benefit from this program.

How Will the Parole in Place Program Expand Who May Apply for Adjustment to Permanent Residence?

Statutory law under INA 245(a) (8 U.S.C. §1255) allows a nonimmigrant (e.g. F-1 student or H-1B temporary worker) to adjust to permanent residence based on an approved immigrant petition. This involves filing the Form I-485, Application to Register Permanent Residence or Adjust Status, with USCIS, either concurrently with or after the Form I-130 or Form I-140 filing.

An approved or approvable Form I-130 (family-based) or Form I-140 (employment-based) petition does not necessarily mean you qualify for adjustment of status. There are several eligibility requirements to meet for INA 245(a) adjustment.

Except for INA 245(i) and VAWA-based applicants, one key requirement is that you must have been “inspected and admitted or paroled” into the United States. This applies to even “Immediate Relatives” of a U.S. citizen; namely, spouses, unmarried children under 21 years old, and parents (if the U.S. citizen is 21 years of age or older).

For more information, see Parole in Place Plan Will Allow Certain Undocumented Spouses and Children of U.S. Citizens to Get Green Cards Through I-485 Adjustment, Instead of Consular Processing.

What to Do to Prepare to File for Parole in Place

More details about the application process and eligibility requirements will be published in an upcoming Federal Register notice.

In the meantime, eligible applicants may begin to gather the following evidence to prepare to file for Parole in Place:

  • Evidence of a legally valid marriage to a U.S. citizen as of June 17, 2024, such as a marriage certificate;
  • Documentation of proof of identity, including expired documents may include:
    • Valid state or country driver’s license or identification; 
    • Birth certificate with photo identification; 
    • Valid passport; or 
    • Any government issued document bearing the requestor’s name, date of birth, and photo.
  • Evidence of your spouse’s U.S. citizenship, such as a passport, birth certificate or Certificate of Naturalization;
  • Documentation to establish your continued presence in the United States for at least 10 years, as of June 17, 2024. While more information will be made available in the forthcoming Federal Register Notice and subsequent FAQs, examples of documentation could include copies of:
    • Rent receipts or utility bills;
    • School records (letters, report cards, etc.);
    • Hospital or medical records;
    • Attestations to your residence by religious entities, unions, or other organizations, identifying you by name;
    • Official records from a religious entity confirming participation in a religious ceremony;
    • Money order receipts for money sent into or out of the United States;
    • Birth certificates of children born in the United States
    • Dated bank transactions;
    • Automobile license receipts, title, or registration;
    • Deeds, mortgages, or rental agreement contracts;
    • Insurance policies; or
    • Tax returns or tax receipts.

Consult a Qualified U.S. Immigration Attorney

Not all undocumented immigrants qualify for Parole in Place. Furthermore, Parole in Place, by itself, does not lead to permanent resident or green card status. Because it is not law passed by U.S. Congress, it is especially vulnerable to lawsuits and is not guaranteed to continue in the future.

There may be risks to applying for any U.S. immigration benefits, especially if you have a prior removal (deportation) order or criminal record. Be sure to consult an experienced U.S. immigration attorney to discuss whether to file for Parole in Place.

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The Legal Immigrant provides general information only from Dyan Williams Law. It is based on U.S. immigration laws, regulations and policies that are subject to changeDo not consider it as legal advice. The sharing or receipt of this information does not create an attorney-client relationship.

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Parole in Place Plan Will Allow Certain Undocumented Spouses and Children of U.S. Citizens to Get Green Cards Through I-485 Adjustment, Instead of Consular Processing

On June 18, the Biden Administration announced a “Parole in Place” plan to allow certain undocumented spouses and children of U.S. citizens to apply for permanent residence within the U.S., instead of needing to depart for Immigrant Visa processing. The Fact Sheet: President Biden Announces New Actions to Keep Families Together provides basic information on the program, which the Administration says will promote family unity.

The Administration estimates there are about 500,000 spouses and 50,000 children (or stepchildren) of U.S. citizens who will benefit from this program. Under current law or policy, they cannot adjust to permanent residence because they were not inspected and admitted lawfully into the United States. There are risks to departing the U.S. to apply for the Immigrant Visa abroad, even when it is based on an approved I-130 immigrant petition filed by their U.S. citizen spouse or parent.

Critics argue this amounts to “amnesty” for individuals who came to the U.S. without proper visas or travel documents. While the high number of migrant encounters and unlawful entries at the Southwest Land Border (between U.S. and Mexico) is alarming, family unity has been a bedrock of U.S. immigration.

If implemented, the proposed program strikes a delicate balance between creating lawless open borders and initiating mass deportation, which are both extreme and unworkable measures. Whether it will survive possible legal scrutiny or is really “political pandering” are reasonable but separate questions.

The exact application process – such as required forms, filing fee and documentary evidence – has yet to be decided. Until a proposed rule is published in the Federal Register and public comments are accepted and reviewed, it will not go into effect as a final rule. USCIS will reject any filings related to this process received before the official start date, which might begin in late summer 2024.

Who Will Benefit from the Parole in Place Program?

The Parole in Place program is intended to benefit certain green card applicants who:

  • are physically present in the U.S. without inspection and admission or parole;
  • are legally married to a U.S. citizen OR are legally the children or stepchildren of a U.S. citizen, as of June 17, 2024;
  • have been continuously present in the U.S. for 10 years or more, as of June 17, 2024;
  • do not pose a threat to public safety or national security;
  • are otherwise eligible to apply for adjustment of status; and
  • merit a favorable exercise of discretion.
[NOTE: For U.S. immigration purposes, a “child” is an unmarried person under the age of 21. If the person is a “stepchild”, the marriage between the U.S. citizen and the biological parent must have occurred before the stepchild turned 18.]

Spouses and children of U.S. citizens who are not physically present in the U.S. as of June 17, 2024, have not been continuously present in the U.S. since June 17, 2014 or earlier, have a serious criminal record that poses a risk of harm to the public or nation, or have negative factors that make them ineligible for or undeserving of adjustment of status will not benefit from this program.

How Will the Parole in Place Program Expand Who May Apply for Adjustment to Permanent Residence?

Under statutory law, INA 245(a) (8 USC §1255), an applicant must have been “inspected and admitted or paroled” into the United States to apply for adjustment of status. The Form I-485, Application to Register Permanent Residence or Adjust Status, is filed with USCIS by qualified applicants seeking a green card while they are inside the U.S.

If they do not qualify for I-485 adjustment, they could still be eligible for Immigrant Visa processing at the U.S. Consulate or U.S. Embassy abroad. But a departure carries risks, including long-term or permanent separation from their family in the U.S., if the visa is denied.

Even spouses or children of U.S. citizens are not eligible for INA 245(a) adjustment if they have not been inspected and admitted or inspected and paroled into the United States, which is a key requirement.

An eligible applicant who did not enter the U.S. with proper admission, but later receives Parole in Place will meet one major requirement for adjustment of status.

Upon receipt of a properly filed Parole in Place application, USCIS will decide, on a case-by-case basis, whether to grant parole in the favorable exercise of discretion. In its Fact Sheet: DHS Announces New Process to Promote the Unity and Stability of Families, USCIS states it will aim to detect potential fraud, consider the applicant’s immigration record and criminal history (if any), and perform background checks and national security and public safety vetting in the process.

What are the Advantages of the Parole in Place Plan?

1. Eligible parolees may apply for employment authorization and receive temporary protection from removal

In general, a person who is granted parole may apply for an Employment Authorization Document (EAD) or work permit by filing a Form I-765, Application for Employment Authorization, with USCIS under category (c)(11). Furthermore, parole serves as a temporary relief from removal (deportation) for a certain period of time.

2. A Parole in Place grant will allow the applicant to meet the “admission and inspection” requirement for adjustment of status under INA 245(a)

Under current U.S. immigration law or policy, applicants who did not enter the United States with proper inspection and admission or parole cannot adjust to permanent residence. They must instead depart the U.S. to apply for the Immigrant Visa abroad.

A departure from the U.S. triggers the 3/10-year bar under INA 212(a)(9)(B) if they accrued unlawful presence lasting more than 180 days, starting at age 18. Thus, they need to file for and obtain a Form I-601 waiver (if they are abroad) or Form I-601A provisional waiver (if they are in the U.S) to receive the Immigrant Visa before the 3/10-year bar expires.

To get the waiver, the applicant must prove they have a qualifying relative (U.S. citizen or permanent resident spouse or parent) who will face extreme hardship if they are not permitted to re-enter the United States as an immigrant. “Extreme hardship” is often very difficult to prove. It must be at a higher level than the ordinary hardship resulting from family separation or the qualifying relative’s relocation to the applicant’s home country for family unity.

If the Form I-601 waiver application is denied by USCIS, the Immigrant Visa applicant is left stuck outside the U.S. (until the unlawful presence bar expires). If the Form I-601A provisional waiver is denied, the applicant might decide to forego the Immigrant Visa process and remain in the U.S. without authorization and risk the possibility of removal (deportation) due to the unlawful presence.

Under the proposed policy, eligible applicants who would otherwise have to apply for a green card through consular processing may request Parole in Place from USCIS to meet the “inspection and parole” requirement for INA 245(a) adjustment of status.

What are the Limitations of the Parole in Place Plan?

1. Parole in Place, by itself, does not make the applicant a permanent resident or provide lawful nonimmigrant or immigrant status

Obtaining Parole in Place does not guarantee permanent residence and only gives you temporary, authorized stay. It is also not a direct path to U.S. citizenship. Applicants must first be granted permanent residence and maintain this status for three or five years before they meet one of the requirements for naturalization.

Parole allows an applicant – who entered the U.S. without proper inspection and admission – to otherwise meet just one of the eligibility criteria for I-485 adjustment. Being lawfully admitted or paroled into the United States is one requirement to filing for permanent residence when the applicant is already physically present in the country. But, by itself, it is not enough to get a green card.

2. Parole in Place does not excuse the applicant from meeting all other eligibility requirements for I-485 adjustment of status and USCIS’ favorable exercise of discretion.

Except for Immediate Relatives (e.g. spouses and children of U.S. citizens) and certain other visa categories, green card applicants must have continuously maintained lawful status since entry into the United States. Otherwise, if they ever violated their status or fell out of status, they do not qualify for INA 245(a) adjustment.

There are also inadmissibility grounds that prohibit the grant of permanent residence. Some of the most common are INA 212(a)(6)(C)(i) (fraud or willful misrepresentation of material facts to obtain U.S. immigration benefits), INA 212(a)(2)(A) (certain criminal convictions), and INA 212(a)(9)(A) (removal orders). If you have an inadmissibility bar, you will be denied adjustment of status unless you qualify for and receive the necessary waiver from USCIS. Some inadmissibility bars, such as INA 212(a)(2)(C) due to controlled substance trafficking, cannot be waived in green card applications.

In addition, spouses and children of U.S. citizens must have an approved Form I-130 immigrant petition filed on their behalf to apply for family-based permanent residence. The U.S. citizen must show, by a preponderance of evidence, there is a real spousal relationship or parent-child/stepchild relationship to get an I-130 approval. Furthermore, if the noncitizen spouse is found to have previously entered a sham marriage to a prior petitioner to obtain U.S. immigration benefits, USCIS is prohibited from approving a subsequent (new) I-130 petition under INA 204(c).

For more information on the I-485 adjustment of status application process, see:

Who is Eligible (and Not Eligible) for Adjustment to Permanent Resident Status?

Adjusting to Permanent Resident Status Under INA 245(a): Bars, Exceptions and Exemptions

A Key Requirement for I-485 Adjustment of Status: Inspection and Admission OR Inspection and Parole

How Will the Parole in Place Program Take Effect?

The Parole in Place program is expected to be implemented by federal rulemaking, not by Congressional action, which is more complex. Due to political polarization, ideological cohesion, and lack of bipartisanship in today’s 118th Congress and prior Congresses, the U.S. immigration system has been broken for decades. There is no real agreement on how to fix this deep-rooted problem, which has no simple solutions. The last major comprehensive reform was The Immigration Reform and Control Act (IRCA) passed by the 99th Congress and signed into law by President Ronald Reagan on November 6, 1986.

Under the federal rulemaking process, USCIS (DHS) may implement a new rule by publishing a Notice of the Proposed Rulemaking to the Federal Register for the public to view at http://www.federalregister.gov. This notice allows the public to comment on whether or not a rulemaking should be initiated. The comment period normally takes at least 30 to 60 days. After the comment period closes, the agency reviews and analyzes all the comments. Then it decides whether to implement the proposed rule, modify it, or withdraw it.

A federal rule is issued by agencies, such as DHS, that govern how laws will be applied. It is not the same as statutory law passed by Congress. Statutory law under INA 212(d)(5) (8 U.S.C. 1182(d)(5) does allow parole authority to be exercised, but only on a case-by-case basis, for urgent humanitarian reasons or a significant public benefit, and for a temporary purpose.

To endure possible legal challenges in courts, the Parole in Place program must not contradict U.S. immigration laws (or Congress’ intent when it passed the laws). This is even more critical with the U.S. Supreme Court’s June 28th decision to strike down the Chevron doctrine. In Loper Bright Enterprises, it found that courts do not have to defer to federal agencies’ regulations interpreting ambiguous laws. Courts may instead apply their own interpretation of unclear statutes.

Parole in Place for military families has existed for at least a decade. But now that the U.S. Supreme Court has overturned Chevron, the DHS will have to make an even stronger case for certain undocumented spouses and children of U.S. citizens. Although the Parole in Place plan is expected to become a temporary fix, a federal rule now carries less weight.

Consult a qualified U.S. immigration attorney to discuss any potential Parole in Place benefits that may apply to you. This is NOT new law. Currently, it is a proposed program by Executive Action, which will not go into effect until it is published as a final rule in the Federal Register.

Beware of “notarios” and other consultants who make false promises to get you to pay them fees. If you rely on bad advice, you could put yourself in a worse position to legalize your U.S. immigration status and might further end up in removal (deportation) proceedings.

To watch YouTube video, click HERE.

To listen to podcast, click HERE.

To read the transcript, click HERE

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The Legal Immigrant provides general information only from Dyan Williams Law. It is based on U.S. immigration laws, regulations and policies that are subject to changeDo not consider it as legal advice. The sharing or receipt of this information does not create an attorney-client relationship.

SUBSCRIBE           CONTACT