On Friday, November 15, 2013, the US Citizen and Immigration Services (USCIS) formalized a little-known policy that paves the way for undocumented family members of US servicemembers to regularize their immigration status. The new rule allows USCIS to grant “parole” to undocumented spouses, children, and parents of servicemembers who are serving or have served on active duty, or who are or have been members of the selected reserve of the ready reserve. Although parole alone is a temporary status that does not lead to a green card, a parolee is not considered to be in the country illegally, and in some cases may even apply for work authorization.
This is an exciting development not so much for the opportunity to apply for parole itself, but because a grant of parole removes the only barrier preventing many military family members from applying for a green card without first leaving the US (often referred to as “adjustment”). Under current immigration law, people who are already in the US and want to apply for a green card frequently face two difficulties. The first is time spent in the US without legal status. Although most people applying to adjust will be prevented from doing so if they are currently without legal status, this restriction does not apply to immediate relatives of US citizens. The second difficulty, however, manner of entry, does affect citizen relatives. A person who was not “inspected, admitted, or paroled” upon entry to the US is generally ineligible for adjustment.
A US citizen may apply for residence for his spouse, for instance, but if the spouse has not been “inspected, admitted, or paroled,” she will not be allowed to adjust within the US, and must instead leave the US and complete her application abroad. Being forced to leave the US is such a crucial factor because of the infamous 3 and 10-year bars, which are triggered only after a person leaves the US. If a person has been in the US illegally for between 6 months and 1 year, when she leaves the country, she will be forbidden from re-entering the US for 3 years. If she has been in the US unlawfully for over a year, the period of punishment increases to 10 years. While there is a waiver available for this bar, applying is costly and time-consuming, and it is only available to those who can show that their US citizen or resident parent or spouse would suffer “extreme hardship” if the waiver is not granted.
A grant of parole removes this obstacle. Once granted parole, a person meets the requirement of being “inspected, admitted, or paroled” into the US, even if she originally entered illegally. If she is the immediate relative of a US citizen, the time she spent here without status will not force her to leave the US to complete her green card application. Because she will not need to leave the US to complete the application process, she will not trigger the 3 or 10-year bar for unlawful presence, and will not need to apply for the waiver.
The situation is different for family members of servicemembers who are not citizens but rather lawful permanent residents. Unlike immediate relatives of US citizens, relatives of residents are not eligible to adjust within the US if they have spent time in the country without status. While a grant of parole will cure an illegal entry, it will not cure time spent here unlawfully after the entry. A family member of a resident, then, would still have to leave the US to complete the application process, triggering the 3 or 10-year bar. Luckily, however, expedited or immediate naturalization is available to many service members, allowing their family members to take advantage of the easier and less-risky in-country application process as soon as naturalization is complete.
While parole in place removes the barrier of illegal entry for family members of citizen service members, this does not necessarily mean every family member will be able to adjust. Other bars to adjustment, such as criminal convictions or certain health problems, still apply, and a beneficiary of parole for military families should still consult with an immigration attorney to verify eligibility for adjustment.
While Friday’s announcement is certainly exciting, it is worth noting that this “new” policy is not really new. USCIS has had the power to grant parole for decades, and the practice of paroling military family members has been around for years. The problem was that the policy was never formally recorded. Many USCIS officers and immigration attorneys were unfamiliar with the practice, meaning that many military families were simply not informed of the existence of parole, or were improperly denied parole by USCIS officers unfamiliar with its use in this context. Friday’s formalization of a longstanding practice is an example of how important improvements can be made to the current immigration system while comprehensive reform is pending. Google