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:
USCIS Expected to Start Accepting Parole in Place Applications on August 19
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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 change. Do not consider it as legal advice. The sharing or receipt of this information does not create an attorney-client relationship.
