The Immigration Benefits Of Military Parole In Place
Guest Post
When a military member is threatened with potential negative immigration consequences to their family, it may have a significant impact on the military member’s morale and readiness to perform the duties of their service. Recognizing this, the U.S. government has created certain discretionary benefits to ease the immigration process for military members’ families. One such benefit is military “parole in place.” Significantly, if granted, the parolee would be authorized to stay in the U.S., and if they meet the criteria, it would further allow the family member to receive their permanent residency in the United States, rather than having to travel abroad to their home country for an interview to finish processing their case to receive their green card.
The History of Parole in Place
Parole in Place for military families gained traction during the Bush administration and the Iraq War. Specifically, the case of Alex Jimenez, a soldier in the U.S. Army, brought attention to the necessity for discretionary parole in the context of military families. [1] Alex Jimenez had petitioned U.S. Citizenship and Immigration Services (“USCIS”) to obtain lawful permanent resident status (a green card) for his wife, Yaderlin, before he deployed to Iraq.
Tragically, while Yaderlin’s immigration case was still pending, Alex went missing (and was eventually found killed in action) following an ambush on his unit in May of 2007. Yaderlin had originally entered the country without documentation, and she was therefore ineligible for permanent residency through adjustment of status. The government placed her into removal proceedings for deportation back to her country of origin. Forcing Alex’s wife to leave the U.S. to process her case overseas would leave her with little hope for reentry, with her petitioner husband missing. In addition, upon exiting the country, Yaderlin would trigger a multiple year bar to reentry due to her accumulated unlawful presence, a bar that she would not be able to overcome without her husband’s presence. This meant that it would be extremely difficult, if not impossible, for Yaderlin to be able to return to the U.S. after being removed.
Many public officials found forcing a military spouse to leave the U.S. after the death of her active duty husband unpalatable. Faced with public outcry and moral pressure, the Secretary of Homeland Security made the decision to grant Yaderlin discretionary parole. This effectively protected her from deportation and allowed her to successfully adjust her status to obtain a green card in the U.S. Since then, this benefit has expanded to become the military parole in place program available to families today.
The Value of Parole in Place
The legal authority for discretionary parole in place is found in the Immigration and Nationality Act (“INA”) § 212(d)(5)(A); 8 U.S.C. § 1182(d)(5)(A). This section provides the Attorney General with discretionary authority to grant parole on a case-by-case basis for urgent humanitarian reasons or significant public benefit. Various USCIS policy memoranda have confirmed its goal of maintaining military family unity to prevent associated stress, anxiety, and other factors affecting the military member’s morale.[2] The granting of parole in place would eliminate major legal impediments for a family member who is seeking to obtain permanent residency in the U.S.
Parole in place is a significant benefit for a spouse, widow(er), parent, or son or daughter of a current or former member of the U.S. armed forces who entered the United States without status or inspection. In plain terms, “entered without inspection” means that the person crossed the border in violation of the law– such as by walking across the desert, climbing over a border fence, swimming the Rio Grande, or hidden in a vehicle or a boat. In other words, they did not go through a port of entry and ask the officer to be admitted to the United States with proper documents. Typically, a person who entered the country without inspection, even if they are married to a U.S. citizen, must return to their home country for an interview to obtain permanent residency because they are not eligible for adjustment of status. Adjustment of status is the process to apply for, and be granted, permanent residency in the United States.
Under INA § 245(a), an applicant must be “[a]n alien who was inspected and admitted or paroled into the United States” to be eligible for adjustment of status. Usually, this means that applicants who enter unlawfully must leave the country to consular process their case and attend an interview at the U.S. Embassy in their home country. Not only must they depart the U.S., but the act of leaving creates a further legal obstacle to permanent residency.
Once the person leaves the U.S. after a period of unlawful presence, the person triggers a three- or ten-year bar under INA § 212(a)(9)(B)(i)(I) and (II). While subject to these bars, foreign nationals cannot receive a visa, adjust status, or be admitted to the U.S. at a port-of-entry, unless they have been granted a waiver under INA § 212(a)(9)(B)(v). For the waiver to be granted, the applicant must show that their lawful spouse or parent would suffer “extreme hardship” if they would not be able to return to the U.S.[3]
Significantly, obtaining parole in place would eliminate these legal impediments. A grant of parole in place creates a legal fiction that assumes the applicant has a lawful entry (“admission or parole”), thus allowing the person to adjust status in the United States. This reduces the continuous anxiety and the tremendous physical, financial, and mental burden of the family member having to return to their home country for processing and risk not being able to come back to the U.S. They may remain in the U.S. throughout the whole process.
Eligibility and Process of Applying for Parole in Place
USCIS specifies the eligibility requirements for military parole in place[4]. This discretionary benefit is available to only specific categories of servicemembers and veterans, and to only some of their family members. Currently, the spouse, widow(er), parent, son or daughter of a military member is eligible. In addition, the qualifying military member must be:
- Active duty members of the U.S. Armed Forces;
- An individual serving in the Selected Reserve of the Ready Reserve; or
- An individual (living or deceased) who previously served on active duty or the Selected Reserve of the Ready Reserve and was not dishonorably discharged.
In order to apply, various forms and supporting documents must be submitted to the director of the USCIS office with jurisdiction over the applicant’s place of residence. Among the necessary documents are a completed Form I-131, Application for Travel Document, and evidence of family relationship, the family member’s involvement with the military, and any additional favorable discretionary factors. If granted, parole in place will be issued in one-year increments, and extensions may be granted as appropriate. The applicant is also issued a valid Form I-94, which authorizes the person to be present in the U.S. as a parolee. The form also creates a lawful entry, and thus serves as tangible evidence of the legal fiction created to satisfy the “admission or parole” requirement for the purposes of adjustment of status. Barring other grounds of inadmissibility, the parolee may continue the adjustment of status process to become a permanent resident and obtain associated benefits in the United States.
USCIS adjudicates applications for parole in place on a case-by-case basis, and the decision is entirely discretionary. Officers will weigh the positive and negative factors of each case, as each application is reviewed according to the relevant laws, national policies, and practices of the local office. Although the USCIS Adjudicator’s Field Manual directs officers to grant parole in place “sparingly,” it also suggests that cases involving close ties to military family members “weigh heavily in favor of parole in place.”[5] In practice, many field offices will grant most such requests, while some offices will grant mostly none.
Current Trends and Policies of Discretionary Military Benefits
In early 2017, President Trump issued Executive Order 13767, titled “Border Security and Immigration Enforcement Improvements.” [6] Among other provisions, the executive order reinforced that parole is to be “exercised only on a case-by-case basis in accordance with the plain language of the statute, and in all circumstances only when an individual demonstrates urgent humanitarian reasons or a significant public benefit derived from such parole.” Though military parole in place was not specifically mentioned, neither was it specifically exempted from the executive order. For now, military parole in place remains a useful legal remedy for military members and their family members. According to USCIS, the agency has approved nearly 4,000 applications for parole in place since fiscal year 2016. The number of applications for military related parole in place has steadily increased, possibly due to fears of growing immigration enforcement in recent years.[7]
Finally, it is worthwhile to keep in mind the alternative discretionary benefit known as “deferred action,” especially if military parole in place is not an option. Deferred action is most useful for applicants who have a lawful entry in their past (and are therefore not eligible for parole in place), but have since lapsed in their legal status, rendering them deportable. In such a situation, a current or former member of the U.S. armed forces may request deferred action for an immediate family member to delay or prevent their removal from the U.S., as a grant of deferred action would create a window of authorized stay during which the applicant is protected from deportation.[8]
The growing demand of programs like these demonstrates a growing need for more compassionate and understanding immigration policies. Each approved discretionary request represents an understanding of the difficulties faced by military members, and the necessary support their families provide.
[1] Schoetz, David, and Marcus Baram. “A Military Wife’s Rock and Hard Place.” ABC News, June 20, 2007, available at: https://abcnews.go.com/TheLaw/story?id=3297537 .
[2] USCIS Memorandum, PM-602-0091 (Nov. 15, 2013), partly reaffirmed by Secretary of Homeland Security Memorandum, “Families of U.S. Armed Forces Members and Enlistees” (Nov. 20, 2014), available at: https://www.dhs.gov/sites/default/files/publications/14_1120_memo_parole_in_place.pdf. Further clarification provided in USCIS Policy Memorandum, PM-602-0114 (Nov. 23, 2016), available at: https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2016/PIP-DA_Military_Final_112316.pdf .
[3] The application for a waiver for unlawful presence is submitted on Form I-601 or Form I-601A, depending on how and where the case is being processed, as well as whether other grounds of inadmissibility, such as criminal issues or fraud, must be waived. See https://www.uscis.gov/i-601 and https://www.uscis.gov/i-601a for more information.
[4] See USCIS, Discretionary Options for Military Members, Enlistees, and Their Families, available at: https://www.uscis.gov/military/discretionary-options-military-members-enlistees-and-their-families .
[5]USCIS Adjudicator’s Field Manual Ch. 21.1(c)(1), available at: https://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-3481/0-0-0-3501.html#0-0-0-385 .
[6] Exec. Order 13767 (Jan. 25, 2017), availbale at: https://www.whitehouse.gov/presidential-actions/executive-order-border-security-immigration-enforcement-improvements/
[7] See Copp, Tara. “More Veterans’ Requests for Help on Immigration Are Rejected Now, Data Shows.” Military Times. July 05, 2018, available at: https://www.militarytimes.com/news/2018/07/05/more-veteran-requests-for-help-on-immigration-are-rejected-now-data-shows/
[8] A good resource for more detailed information on military parole in place and deferred action is ILRC, Immigration Options For Military Families (Sept. 2018), available at: https://www.ilrc.org/sites/default/files/resources/immig_options_military_fams-20181001.pdf
