Biden’s Parole in Place Announcement: Momentous, or Too Little Too Late?

President Biden announced this morning that the Department of Homeland Security (DHS) will “take action” to allow certain undocumented spouses and children of U.S. citizens to apply to remain legally in the U.S. with work authorization and, subsequently, to apply for adjustment to lawful permanent resident (LPR), i.e., green card status. DHS has released a Fact Sheet with further details. 

According to the announcement, this action could protect approximately half a million spouses of U.S. citizens, and approximately 50,000 noncitizen children under the age of 21 whose parents are married to U.S. citizens. On average, those who are eligible for this process have resided in the U.S. for 23 years.

Eligibility for Parole in Place

To be considered on a case-by-case basis for this process, an individual must, among other things:

  1. Be present in the United States without admission or parole.
  2. Have been continuously present in the United States for at least 10 years as of June 17, 2024.
  3. Have a legally valid marriage to a U.S. citizen as of June 17, 2024.
  4. Have no disqualifying criminal history or otherwise constitute a threat to national security or public safety.
  5. Merit a favorable exercise of discretion.

Noncitizen children of potential applicants may also be considered for parole under this process if they are physically present in the United States without admission or parole and have a qualifying stepchild relationship to a U.S. citizen as of June 17, 2024.

Application Process

In order to be considered for parole, an individual will need to file a form with USCIS along with supporting documentation to show they meet the requirements and pay a fee. Further information regarding eligibility and the application process, including a notice in the Federal Register, will be published in the near term. USCIS will reject any filings or individual requests received before the date when the application period begins later this summer.

Upon receipt of a properly filed parole in place request USCIS will determine on a case-by-case basis whether a grant of parole is warranted and whether the applicant merits a favorable exercise of discretion. An interview may be required. All requests will take into consideration the potential requestor’s previous immigration history, criminal history, the results of background checks and national security and public safety vetting, and any other relevant information available to or requested by USCIS. USCIS has processes in place to identify and address potential fraud, which will be applied here to ensure the integrity of this program.

Upon approval of parole in place, the previously undocumented individual will receive a Form I-94 travel record, confirming their parole. They will be allowed to remain in the U.S. and be authorized to work for a period of up to three years. As parolees, they will then be eligible under INA section 245(a) of the Immigration and Nationality Act (INA) to file a Form I-485, Application to Adjust Status, to become an LPR based on sponsorship by the U.S. citizen spouse.

How Did We Get Here? From IIRIRA to Now

A noncitizen who has entered the U.S. without inspection or overstayed their nonimmigrant visa is considered unlawfully present. Since 1924, U.S. immigration law has classified unlawfully present noncitizens as subject to removal (deportation). No statute of limitations applies. They may be removed even after many years in the United States, whether or not they have committed other crimes or offenses, and regardless of whether their parents, spouses, or children are U.S. citizens.

Immigration law also seeks to deter unlawful presence in the country. Some immigration violations, such as illegal entry and reentry, are crimes. Persons unlawfully present in the U.S. are barred from working legally or receiving public benefits. The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 took a more drastic approach to deterrence.

As background, U.S. citizens are generally able to sponsor their spouses for LPR status. There are two routes to apply. One way is to apply for an immigrant visa at a U.S. Embassy or Consulate abroad. The other is for a person physically present in the U.S. to apply to USCIS for adjustment of status.

Under the law (INA § 245(a)), a person who entered the U.S. without inspection is ineligible to apply to USCIS for adjustment of status. And under IIRIRA they may be barred from applying abroad for an immigrant visa. Namely, a person is ineligible for an immigrant visa in the following situations:

  • A person who has been unlawfully present in the U.S. for more than 180 days but less than one year during a single stay and before removal proceedings begin is ineligible within three years of departing the U.S.
  • A person who has been unlawfully present in the U.S. for more than one year in a single stay is ineligible within 10 years of departing the U.S.
  • A person who has been unlawfully present in the U.S. for more than one year in the aggregate during one or more stays in the U.S. is permanently ineligible.

There should be consequences for unlawful presence. But is being barred from joining one’s U.S. citizen spouse in the U.S. for three years, 10 years, or permanently a humane solution in every case?

IIRIRA made an exception to the three and 10-year ineligibilities for unlawful presence. USCIS has sole discretion to waive ineligibility in the case of an immigrant visa applicant who is the spouse or son or daughter (but not parent) of a U.S. citizen or LPR who can prove that the visa refusal would result in “extreme hardship” to the citizen or LPR spouse or parent of such alien. (Note that hardship to the applicant is irrelevant).

This exception is very narrow. First, to prove “extreme hardship” means to prove that the hardship to the U.S. citizen or LPR relative that would follow from the visa refusal would be “extreme” in comparison to what would usually be expected in the average case. So, the waiver can be granted only in an extremely small percentage of cases. Also, applying for the waiver is a procedural nightmare. To apply for the waiver, the applicant must first leave the U.S., applying for and be denied the immigrant visa at a U.S. Embassy or Consulate. Only then can the waiver application be filed with USCIS. But most applicants would be apprehensive to leave the U.S. without knowing whether USCIS will agree that the applicant’s hardship falls within that extremely small percentage of cases or whether USCIS will use their discretion to grant the waiver. And the waiver process can take years, during which the applicant could be stuck abroad.

In 2013, the Obama administration put into place regulations intended to ease the waiver process by allowing the filing of and decision on “provisional” waiver applications in the U.S. The regulations’ goals were to provide some level of confidence that a person who departs the U.S. to apply for an immigrant visa and waiver will actually qualify for that waiver, and (2) to reduce the amount of time the applicant will need to wait abroad for processing. Yet now that provisional waiver application process is bogged down with USCIS processing delays nearly four years long:

Biden’s newly announced parole in place program would allow certain undocumented spouses and children of U.S. citizens who qualify to legalize without the restrictive requirements and burdensome processes of the waiver or provisional waiver.

Momentous, or Too Little Too Late?

According to the President’s announcement, this action could protect approximately half a million spouses of U.S. citizens, and approximately 50,000 noncitizen children under the age of 21 whose parents are married to U.S. citizens.

But whether even one of these mixed-status families will benefit depends on the outcome of the election and inevitable court battles.

Already, former President Trump and his campaign have blasted the plan as a “mass amnesty.” Trump has already stated that if reelected in November, on his first day in office he would direct the DHS to terminate the program.

If Biden is reelected, the administration will still need to battle it out in court, likely with the same Republican state officials who have sued to halt the Deferred Action for Childhood Arrivals (DACA) program announced in 2012 by President Obama to provide “deferred action” that shields from deportation certain immigrants brought to the U.S. without inspection as children. The administration asserts that the legislative authority for DACA is the prosecutorial discretion granted by Congress to DHS to defer deportation. DACA has been in legal limbo for many years. Trump’s DHS rescinded the program in 2017, but in 2020 the Supreme Court concluded the rescission was illegal. Then, in 2022 the U.S. Court of Appeals for the Fifth Circuit found the program violated the Administrative Procedure Act (APA), was contrary to federal immigration law, and was not a valid use of prosecutorial discretion by DHS. The Biden Administration issued regulations in 2022 in an attempt to cure these deficiencies. The case is currently under review by the Fifth Circuit again and may well end up in the Supreme Court.

The argument that DHS has authority to grant parole in place does not rely on the same rationale as DACA. Instead, the authority for parole in place is found in section 212(d)(5) of the Immigration and Nationality Act (INA), which provides that DHS may as a matter of discretion “parole into the United States temporarily under such conditions as [DHS] may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit.”

The National Defense Authorization Act for Fiscal Year 2020, Public Law 116-92, signed by President Trump, included a sense of Congress” “reaffirm[ing]” “the importance of [DHS’s] parole in place authority.”

Parole in place was first used by President Bush to legalize the undocumented family members of active-duty U.S. armed forces members and individuals in the reserves. President Trumps’ DHS reportedly approved 20,000 of these cases.

And the Biden administration created the Uniting for Ukraine program to protect Ukrainians fleeing the Russian invasion of their country.

I have trouble understanding arguments made so far that DHS does not have parole in place authority.

As a matter of policy, in my opinion, the parole in place program as announced today is a no-brainer. To be eligible, the applicant’s entry without inspection must have been not later than June 17, 2014, and they must have resided in the U.S. continuously since then. They have likely built strong bonds with their U.S. citizen spouses, their families, and communities. The individual’s departure from the U.S. to wait abroad for 10 years is a very high price for them, the U.S. citizen spouse, and the family to pay for the violation. The law should make it a priority to keep families intact. And there’s no reason to make these individuals wait years for a provisional unlawful presence waiver and then leave the U.S. to apply for an immigrant visa abroad in order to legalize their status.

The parole in place program is consistent with the Judeo-Christian tradition of justice which underlies our legal system. The undocumented applicant must come out from the shadows and honestly confess to their violation of U.S. immigration law. The USCIS adjudicator, in exercising discretion must judge whether the applicant has a sincere commitment not to reoffend. The adjudicator must weigh the applicant’s good deeds against the seriousness of their violation. USCIS will have every opportunity to exercise their discretion to deny parole in place, or later, to deny adjustment to LPR status in appropriate cases.

Part of me is critical of this new program. As mentioned above, USCIS processing times for provisional waivers are years long. Why should the same couples who already paid for and have waited for adjudication of their provisional waiver applications have to pay and wait for a new application? And what kind of solution for an overburdened immigration agency is it to create an additional application process that some half million spouses and 50,000 children may apply for? Still, for many families the proposed parole in place is a better solution than provisional waivers.

Of course, the parole in place program would be just a band aid. The real solution must be legislative. In appropriate circumstances, the Immigration and Nationality Act should allow adjustment of status for persons who entered without inspection, and should waive the unlawful presence bars in cases where it is in the interest of justice, taking into account the hardship to both the applicant and their U.S. family members. Unfortunately, Congress hasn’t taken meaningful action to reform the immigration system since the Immigration Act of 1990.

President Biden’s announcement of the parole in place program is momentous, but it will ultimately fail unless he can win the election and slog through the inevitable litigation challenging the program.

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