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.
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