Overview of Parole in Place for Undocumented Spouses of U.S. Citizens

As previously discussed on MurthyDotCom, the U.S. Department of Homeland Security (DHS) announced on June 17, 2024, a proposed program to promote family unity by removing certain roadblocks towards lawful permanent residency (i.e., a “green card”) for qualifying undocumented noncitizen spouses of U.S. citizens. The program will rely on a parole-in-place policy, which will allow an undocumented individual to apply for parole without having to first depart the United States. While we await the publication of further details of the program in the Federal Register, here is what we know so far about the parole-in-place program.

Overview of Parole in Place

The Immigration and Nationality Act (INA) authorizes the Secretary of Homeland Security to grant parole to an individual under certain circumstances. A person who is paroled into the U.S. is not formally admitted in a particular nonimmigrant status, but instead is issued an I-94 as a parolee. One common example of the use of parole is when an adjustment of status (form I-485) applicant enters the U.S. based on an advance parole document.

Parole is normally an immigration benefit provided to a foreign national outside the U.S. who is asking to be admitted. But, for more than thirty years, various presidential administrations have also granted the benefit known as parole in place – that is, granting parole to a foreign national who is physically present in the U.S. after entering the country without having been lawfully admitted.

Benefit of Parole in Place for Undocumented Spouse of U.S. Citizen

Although a U.S. citizen can file a petition for alien relative (form I-130) for an undocumented spouse, if the spouse last entered the U.S. unlawfully, the spouse cannot concurrently apply for adjustment of status (form I-485). This is because adjustment of status requires the applicant to have been inspected and admitted or paroled into the U.S. This can be a dilemma because, upon departing the U.S., the spouse typically will trigger a three- or (more commonly) ten-year bar to returning to the U.S. due to the total unlawful presence accrued, and would require a waiver to reenter the U.S., as explained in the MurthyDotCom InfoArticle, Inadmissibility and Immigrant / Nonimmigrant Waivers  (03.Jul.2023).

The Biden Administration proposal would grant parole in place to qualifying undocumented immigrants who have been continuously present in the U.S. for at least ten years and legally married to a U.S. citizen since June 17, 2024, along with meeting certain other requirements. By granting parole in place, the lawful entry requirement for adjustment of status is satisfied, meaning that the foreign national spouse should be eligible to file the I-485 application without having to leave the U.S.

Limitations of the Parole-in-Place Program

The parole-in-place policy is only an option for an individual who previously entered the U.S. without inspection or parole. Parole in place cannot be granted to an individual who entered in valid nonimmigrant status or with a visa waiver and overstayed the admission period. Parole in place can be applied for even by an individual who is in removal proceedings, but not if that individual is an enforcement priority. Additionally, parole in place does not remove other bars to admissibility that an undocumented spouse may have (e.g., health, criminal activity, etc.). It only satisfies the lawful entry requirement for adjustment of status.

Conclusion

This new parole-in-place program is expected to be officially launched by the end of the summer. Once it is put in place, it is likely that the program will be challenged in federal court. It remains to be seen how the federal courts will view this program, and this use of executive authority. But, if it is successful, it could provide significant relief to a large number of foreign nationals who have been living in the U.S. for more than a decade.

Copyright © 2024, MURTHY LAW FIRM. All Rights Reserved