USCIS Publishes Procedures for Consistent Adjudication of “Parole in Place”

Contributed by Amber Blasingame, Associate Attorney

On November 15, 2013, the US Citizenship and Immigration Services (USCIS) published a memorandum “to ensure consistent adjudication” of parole in place applications for family members of current and former military personnel.  The memo also amends sections of the Adjudicators Field Manual (AFM) concerning the ability of aliens granted parole under INA § 212(d)(5) to adjustment their status in the United States.

“Parole” is a temporary status which does not grant “admission,” but extends to the alien a fictional status allowing the alien access to the interior of the United States without “gain[ing] . . . foothold in the United States.”  Parole in place was “formally recognized” in a memo from the former Immigration and Naturalization Services (INS) in 1998.  Under the Immigration and Nationality Act, the agency may grant “parole” of an alien into the United States for humanitarian or public benefit reasons.  Generally parole is granted at a port of entry, but parole “in place” permits the government to grant the status of parole to an alien already in the United States.

Prior to the memo, the individual, USCIS field offices determined eligibility and application procedures to apply for Parole in Place based on their separate interpretations of a combination of prior memorandums concerning parole.  The result was a hodge-podge of eligibility requirements that often narrowed the intent of Parole in Place for family members of military personnel.  The application process was equally as confusing even for those who fell under the narrow definition of eligibility.

According to the memo, the purpose of parole in place, among other initiatives in partnership with the Department of Defense (DoD), is to “assist military members, veterans, and their families to navigate our complex immigration system.”  The Department of Homeland Security (DHS) initiated parole in place for families of military personnel to alleviate the “stress and anxiety” stemming from the uncertainty of a family member’s immigration status in the United States.  The memo recognizes that such stress “adversely affect[s]” military preparedness.  By extension, however, the DoD and DHS agree that the same benefits should be extended to veterans to honor “a commitment that begins at enlistment, and continues as [military personnel] become veterans.”  Further, eligible family members include all immediate relatives of active duty and veteran military personnel: Spouse, children, and parents.

The memo prescribes a consistent procedure for adjudication of parole in place, which starts with an Application for Travel Document (Form I-131).  Applicants must also provide evidence of the qualifying relationship with the military personnel, as well as the military personnel’s status in the U.S. Armed Forces, Selected Reserve, or the Ready Reserve.  Further the memo states, “Absent a criminal conviction or other serious adverse factors, parole in place would generally be an appropriate exercise of discretion,” for the qualifying family member of a member of the US Armed Forces.

Also, as a result of the memo, an alien granted parole pursuant to INA § 212(d)(5) – parole in place as described above, as well as advanced parole or deferred inspection – may also qualify to adjust her status to permanent residence.  If the only obstacle to adjusting status for the immediate relative of a United States citizen is presence in the United States without admission, regardless of the time when and place where the alien entered the United States, then the grant of parole under such circumstances overcomes two requirements for adjustment: the alien must be “admissible” and have been “inspected and admitted or paroled.”  The agency’s previous interpretation of the law prohibited paroled aliens who had at anytime in the past entered without inspection, i.e., “illegally,” at any point other than a port-of-entry, from adjusting their status in the United States to permanent residence.  The amendment does not overcome any prior unlawful presence in the United States or any other grounds of inadmissibility.  However, for immediate relatives (spouse, child, or parent of a US Citizen) and in other limited circumstances, unlawful presence may also be forgiven under other sections of the Immigration and Nationality Act.