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.
