PM-602-0091: Parole of Spouses, Children and Parents of Active Duty Members of the U.S. Armed Forces, the Selected Reserve of the Ready Reserve, and Former Members of the U.S. Armed Forces or Selected Reserve of the Ready Reserve and the Effect of Parole on Inadmissibility under Immigration and Nationality Act § 212(a)(6)(A)(i)
PM-602-0091: Parole of Spouses, Children and Parents of Active Duty Members of the U.S. Armed Forces
November 15, 2013 PM-602-0091
Policy Memorandum
SUBJECT: Parole of Spouses, Children and Parents of Active Duty Members of the U.S. Armed Forces, the Selected Reserve of the Ready Reserve, and Former Members of the U.S. Armed Forces or Selected Reserve of the Ready Reserve and the Effect of Parole on Inadmissibility under Immigration and Nationality Act § 212(a)(6)(A)(i)
Purpose
This policy memorandum (PM) amends Chapter 21.1 of the Adjudicator’s Field Manual (AFM) to ensure consistent adjudication of parole requests made on behalf of aliens who are present without admission or parole and who are spouses, children and parents of those serving on active duty in the U.S. Armed Forces, in the Selected Reserve of the Ready Reserve or who previously served in the U.S. Armed Forces or Selected Reserve of the Ready Reserve.
This PM also amends AFM Chapter 40.6 concerning the effects of parole on an alien’s inadmissibility under Immigration and Nationality Act (INA) § 212(a)(6)(A)(i). This amendment to AFM chapter 40.6 applies to any paroled alien, not only to the family members of Armed Forces personnel.
Scope: This PM applies to and is binding on all U.S. Citizenship and Immigration Services (USCIS) employees.
Authority: INA §§ 212(a)(6)(A)(i), 212(d)(5)(A), 235(a), and 245(a), (c); 8 U.S.C. §§ 1182(a)(6)(A)(i), 1182(d)(5)(A), 1225(a), and 1255(a), (c)
Background
Parole of Spouses, children and parents of Armed Forces personnel
• In partnership with the Department of Defense (DoD), USCIS has launched a number of initiatives to assist military members, veterans, and their families to navigate our complex immigration system and apply for naturalization and other immigration services and benefits.
• This PM builds on these important initiatives as there is concern within DoD that some active members of the U.S. Armed Services, individuals serving in the Selected Reserve of the Ready Reserve and individuals who have previously served in the U.S. Armed Forces or Selected Reserve of the Ready Reserve face stress and anxiety because of the immigration status of their family
members in the United States.
• Military preparedness can potentially be adversely affected if active members of the U.S. Armed
Forces and individuals serving in the Selected Reserve of the Ready Reserve, who can be quickly called into active duty, worry about the immigration status of their spouses, parents and children.
• Similarly, our veterans, who have served and sacrificed for our nation, can face stress and anxiety because of the immigration status of their family members in the United States. We as a nation have made a commitment to our veterans, to support and care for them. It is a commitment that begins at enlistment, and continues as they become veterans.
• Responding to these and similar concerns by several Members of Congress about soldiers and veterans, the Secretary of Homeland Security on August 30, 2010 emphasized the Department’s commitment to assisting military families. The Secretary identified several of the discretionary tools that the Department utilizes “to help military dependents secure permanent immigration status in the United States as soon as possible.” Among the tools listed was “parole … to minimize periods of family separation, and to facilitate adjustment of status within the United States by immigrants who are the spouses, parents and children of military members.”1
• INA § 212(d)(5)(A) gives the Secretary the discretion, on a case-by-case basis, to “parole” for “urgent humanitarian reasons or significant public benefit” an alien applying for admission to the United States. Although it is most frequently used to permit an alien who is outside the United States to come into U.S. territory, parole may also be granted to aliens who are already physically present in the U.S. without inspection or admission. This latter use of parole is sometimes called “parole in place.” The legal authority for granting parole in place was formally recognized by the then-Immigration and Naturalization Service (INS) General Counsel in a 1998 opinion.2 That opinion was endorsed the following year in a memorandum by the then-INS Commissioner.3 In 2007, the then-DHS General Counsel concurred with the 1998 INS General Counsel’s opinion in relevant part.4 The basic authority for parole in place is INA § 212(d)(5)(A), which expressly grants discretion to parole “any alien applying for admission to the United States.” INA § 235(a)(1), in turn, expressly defines an applicant for admission to include “an alien present in the United States who has not been admitted.”
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1 See Letter from Hon. Janet Napolitano, Sec. of Homeland Security, to Hon. Zoe Lofgren, U.S. House of Representatives (Aug. 30, 2010).
2 Memorandum from Paul W. Virtue, INS General Counsel, to INS officials, “Authority to Parole Applicants for Admission Who Are Not Also Arriving Aliens,” Legal Op. 98-10 (Aug. 21, 1998), 1998 WL 1806685.
3 Memorandum from Doris Meissner, INS Commissioner, to INS officials, “Eligibility for Permanent Residence Under the Cuban Adjustment Act Despite Having Arrived at a Place Other than a designated Port-of-Entry” (Apr. 19, 1999), reprinted in 76 Interpreter Releases 676, 684, App. 1 (May 3, 1999).
4 Memorandum from Gus P. Coldebella, DHS General Counsel, to DHS officials, “Clarification of the Relation Between Release under Section 236 and Parole under Section 212(d)(5) of the Immigration and Nationality Act” (Sept. 28, 2007). The same DHS General Counsel’s opinion rejected a conclusion that Mr. Virtue had reached on a separate issue related to release from detention under INA § 236(a)(2)(B) (so-called “conditional parole”), see Matter of Castillo-Padilla, 25 I&N Dec. 257 (BIA 2010) (agreeing with DHS that “conditional parole” under INA § 236(a)(2)(B) does not constitute parole under INA § 212(d)(5)(A)).
This PM addresses two related issues. The first is a policy question: Should parole in place be granted to certain family members of active duty members of the U.S. Armed Forces, individuals in the Selected Reserve of the Ready Reserve, or individuals who previously served in the U.S. Armed Forces or the Selected Reserve of the Ready Reserve? The second is a legal question: Does parole in place (for military family members or anyone else) affect whether an alien is inadmissible under INA § 212(a)(6)(A)(i)? That provision is discussed below and is critical to determining the alien’s eligibility for adjustment of status under INA § 245.
A. Parole in Place for Spouses, Children and Parents of Active Members of the U.S. Armed Forces, Individuals in the Selected Reserve of the Ready Reserve or Individuals Who Previously Served in the U.S. Armed Forces or the Selected Reserve of the Ready Reserve
As noted above, the decision whether to grant parole under INA § 212(d)(5)(A) is discretionary. Generally, parole in place is to be granted only sparingly. The fact that the individual is a spouse, child or parent of an Active Duty member of the U.S. Armed Forces, an individual in the Selected Reserve of the Ready Reserve or an individual who previously served in the U.S. Armed Forces or the Selected Reserve of the Ready Reserve, however, ordinarily weighs heavily in favor of parole in place. Absent a criminal conviction or other serious adverse factors, parole in place would generally be an appropriate exercise of discretion for such an individual. If USCIS5 decides to grant parole in that situation, the parole should be authorized in one-year increments, with re-parole as appropriate.
B. Effect of Parole on Inadmissibility under INA § 212(a)(6)(A)(i) and Adjustment of Status under INA § 245
INA § 212(a)(6)(A)(i) contains two closely related inadmissibility grounds. The first ground relates to the alien who is “present in the United States without being admitted or paroled.” This inadmissibility ground generally covers those who entered the United States without inspection (and are still in the United States). Aliens who have entered the United States without inspection, while not “arriving aliens” as defined in 8 C.F.R. § 1001.1(q), are eligible for parole because they remain applicants for admission.6
The second inadmissibility ground in section 212(a)(6)(A)(i) relates to the alien “who arrives in the United States at any time or place other than as designated by the [Secretary of Homeland Security].” Where the first inadmissibility ground leaves off, this one picks up. Using the present tense (“arrives”), it covers the alien who is in the process of entering U.S. territory without inspection. As is true throughout section 212(a), the choice of tense (“arrives”) is clearly deliberate. In enacting the various inadmissibility grounds in section 212(a), Congress was very specific as to whether the
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5 ICE and CBP also have parole authority. “Memorandum of Agreement between USCIS, ICE, and CBP for the purpose of coordinating the concurrent exercise by USCIS, ICE, and CBP of the Secretary’s Parole Authority Under INA § 212(d)(5)(A) with respect to certain aliens located outside of the United States,” Addendum I (September 2008). Their decisions whether to grant parole are outside the scope of the present PM.
6 INA § 235(a)(1).
individual grounds cover past, present, or future events, or some combination thereof.7 In particular, when Congress intended that a ground cover both past and present events, it said so explicitly.8 In contrast, in the second prong of section 212(a)(6)(A)(i), Congress used only the present tense. Moreover, if “arrives” were read as if it said “arrives or previously arrived,” so as to cover any alien who had ever entered at an undesignated time or place, then the first prong of section 212(a)(6)(A)(i) would be practically superfluous. Ordinarily, the only way for an alien to be present in the United States without admission or parole, as the first prong requires, is to have entered without inspection at some point in the past.9 Those individuals would already be covered by the second prong if “arrives” were read to mean “arrives or previously arrived.”
The two inadmissibility grounds contained within section 212(a)(6)(A)(i) are thus complementary. Together, they capture aliens who have already achieved entry without inspection and those who are in the process of attempting such entry.
Reading “arrives” as if it said “arrives or has previously arrived”10 would also produce at least two anomalies. First, as noted, it would render the first prong of section 212(a)(6)(A)(i) practically superfluous. Second, in combination with another inadmissibility ground, section 212(a)(9)(B)(i), reading “arrives” as “arrives or has previously arrived” would lead to results that Congress could not possibly have intended. The latter ground renders inadmissible any alien who has ever been unlawfully present in the United States for more than 180 days and then departs, but it limits the inadmissibility to either 3 years or 10 years, depending on the duration of the unlawful presence. If the second inadmissibility ground in section 212(a)(6)(A)(i) were interpreted to mean that any prior entry without inspection renders the alien inadmissible, then both the 180-day threshold and the 3-year and 10-year limitations on inadmissibility under section 212(a)(9)(B)(i) would be meaningless. One who enters without inspection and remains for less than 180 days – even one day, for that matter – and then leaves, is not inadmissible at all under section 212(a)(9)(B)(i), but it would not matter, because that person would be inadmissible for life under the more expansive reading of section 212(a)(6)(A)(i). Further, the alien who enters without inspection, remains for 8 months, and then leaves, is inadmissible under section 212(a)(9)(B)(i), but only for 3 years. That 3-year limitation would be meaningless, however, if section 212(a)(6)(A)(i) were interpreted to bar the person for life for the very same prior entry.11
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7 Some inadmissibility grounds, like the second prong of 212(a)(6)(A)(i), cover only present conduct. See, e.g., sections 212(a)(1)(A)(i) (determined “to have a communicable disease of public health significance”)(emphasis added); 212(a)(1)(A)(iv) (“determined … to be a drug addict”) (emphasis added); 212(a)(6)(D) (“is a stowaway”) (emphasis added). Other grounds cover only events that have occurred in the past (up to and including the present time). See, e.g., sections 212(a)(3)(B)(i) (“has engaged in a terrorist activity) (emphasis added); 212(a)(3)(E)(ii) (“ordered, incited, assisted, or otherwise participated in genocide”); 212(a)(6)(E) (“knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law”) (emphasis added). Still others cover only predictions of future activity. See, e.g., sections 212(a)(4)(A) (“is likely at any time to become a public charge”); 212(a)(10)(A) (“coming to the United States to practice polygamy”).
8 See, e.g., sections 212(a)(2)(D)(ii) (“procures or attempts to procure, or [less than ten years earlier] procured or attempted to procure … prostitutes”); 212(a)(3)(D)(i) (“is or has been a member of or affiliated with the Communist … party”); 212(a)(6)(C)(i) (fraudulently “seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit …”); 212(a)(6)(C)(ii) (“falsely represents, or has falsely represented, himself or herself” to be a U.S. citizen).
9 There is one scenario in which the first prong of section 212(a)(6)(A)(i) would capture an alien who does not fall within even the more expansive interpretation of the second prong. If the alien seeks admission at a designated port of entry, is denied admission, is detained, escapes from detention, and then makes his or her way into the interior, he or she would be inadmissible under the first ground but not the second one. It would be far-fetched, however, to assume that this was the only intended use of the first ground in 212(a)(6)(A)(i) (present without admission or parole).
10 Former AFM section 40.6.2(a)(3)(ii) had stated that “[i]nadmissibility does not continue after the alien has departed the United States.” But if this language were interpreted to imply the converse – i.e., that inadmissibility does continue even after the alien has long since arrived in the United States (and terminates only upon departure) – the assumption would have to be that “arrives” means “arrives or, if the person has not departed, has arrived.” There is no apparent legal basis or policy reason to interpret “arrives” in that way.
The above considerations all come into play when an alien who entered without inspection subsequently receives parole. Such an alien will no longer be inadmissible under the first ground in section 212(a)(6)(A)(i) (present without having been admitted or paroled), because the alien has been paroled. And since that alien arrived in the United States only in the past, the second inadmissibility ground in section 212(a)(6)(A)(i) is already inapplicable (even without the parole), because the alien is not one who “arrives” (present tense) at an undesignated time or place. It is not a question of parole curing or erasing the second inadmissibility ground. Rather, the alien who arrived in the past is already outside the ambit of that second ground; past arrivals are the subject of the first ground.
Interpreting the explicit statutory language exactly as it is written therefore avoids all these anomalies. An alien who entered the United States without inspection, but subsequently receives parole, is not inadmissible under either of the two inadmissibility grounds contained in section 212(a)(6)(A)(i).12
For an alien who entered without inspection, a grant of parole under INA § 212(d)(5)(A) affects at least two of the eligibility requirements for adjustment of status. First, adjustment of status requires that the person be “admissible.” INA § 245(a)(2). As discussed above, parole eliminates one ground of inadmissibility, section 212(a)(6)(A)(i). Second, adjustment of status requires that the alien have been “inspected and admitted or paroled.” INA § 245(a). The grant of parole under INA § 212(d)(5)(A) overcomes that obstacle as well. The alien must still, however, satisfy all the other requirements for adjustment of status. One of those requirements is that, except for immediate relatives of United States citizens and certain other individuals,13 the person has to have “maintain[ed] continuously a lawful status since entry into the United States.” INA § 245(c)(2). Parole does not erase any periods of prior unlawful status. Thus, an alien who entered without inspection will remain ineligible for adjustment, even after a grant of parole, unless he or she is an immediate relative or falls within one of the other designated exemptions. Moreover, even an alien who satisfies all the statutory prerequisites for adjustment of status additionally requires the favorable exercise of discretion.
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11 The only apparent counter-point is that, even if the language of the second prong (“arrives”) were read to mean “arrives or has ever arrived,” the limitations built into section 212(a)(9)(B)(i) would still be meaningful with respect to overstays (as opposed to those who entered without inspection). Nothing in the legislative history of section 212(a)(9)(B)(i), however, suggests a specific congressional focus on overstays, or a desire to distinguish between the two groups of undocumented aliens, or an intent to subject an alien to lifelong inadmissibility for having once before entered without inspection. Moreover, if a prior entry without inspection were enough to bar a person for life, then INA § 212(a)(9)(C), which prescribes that result only when the entry without inspection follows either one year of unlawful presence or a removal order, would be superfluous.
12 This analysis pertains exclusively to INA § 212(a)(6)(A)(i). It does not and is not intended to disturb the long-standing principles that an alien granted parole remains an applicant for admission who is considered to be constructively standing at the border, see INA § 101(a)(13)(B); Leng May Ma v. Barber, 357 U.S. 185, 189 (1958); Ibragimov v. Gonzales, 476 F.3d 125, 134 (2d Cir. 2008); and that “an application for admission [is] a continuing one,” Matter of Valenzuela-Felix, 26 I&N Dec. 53, 56 (BIA 2012) (parole for criminal prosecution).
This PM supersedes any previous USCIS guidance on these issues, including the Memorandum to Field Leadership (AD07-18) at 5-6 (March 3, 2009).
Implementation
AFM Chapters 21.1 and 40.6 (AFM Update AD 12-30) are updated as follows. 1. A new section 21.1(c) is added to read:
21.1 General Information About Relative Petitions
(c) Special Parole Consideration for Spouses, Children and Parents of Active Duty Members of the U.S. Armed Forces, individuals in the Selected Reserve of the Ready Reserve or Individuals Who Previously Served in the U.S. Armed Forces or the Selected Reserve of the Ready Reserve. The decision whether to grant parole under INA § 212(d)(5)(A) is discretionary. Generally, USCIS grants parole in place only sparingly. The fact that the individual is a spouse, child or parent of an Active Duty member of the U.S. Armed Forces, an individual in the Selected Reserve of the Ready Reserve or an individual who previously served in the U.S. Armed Forces or the Selected Reserve of the Ready Reserve, however, ordinarily weighs heavily in favor of parole in place. Absent a criminal conviction or other serious adverse factors, parole in place would generally be an appropriate exercise of discretion for such an individual. If USCIS decides to grant parole in that situation, the parole should be authorized in one-year increments, with extensions of parole as appropriate.
To request parole, the alien must submit to the director of the USCIS office with jurisdiction over the alien’s place of residence:
o Completed Form I-131, Application for Travel Document (The USCIS Director has determined that in this situation the Form I-131 may be filed without fee, per 8 CFR 103.7(d));
o Evidence of the family relationship;
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13 INA § 245(c)(2) also exempts certain employment-based immigrants whose unlawful presence was for 180 days or less, in accordance with INA § 245(k)(2); aliens who were unlawfully present only in the past, without “fault” or for “technical reasons;” and certain subcategories of “special immigrant” described in INA § 101(a)(27)(H), (I), (J), or (K).
Evidence that the alien’s family member is an Active Duty member of the U.S. Armed Forces, individual in the Selected Reserve of the Ready Reserve or an individual who previously served in the U.S. Armed Forces or the Selected Reserve or the Ready Reserve such as a photocopy of both the front and back of the service member’s military identification card (DD Form 1173);
o Two identical, color, passport style photographs; and
o Evidence of any additional favorable discretionary factors that the requestor wishes considered.
2. Chapter 40.6.2(a) of the AFM is revised: a. By amending Chapter 40.6.2(a)(1);
b. By deleting Chapter 40.6.2(a)(3)(ii);
c. By deleting Chapter 40.6.2(a)(4)(ii) and redesignating Chapter 40.6.2(a)(4)(iii) as Chapter 40.6.2(a)(4)(ii); and
d. By amending the redesignated Chapter 40.6.2(a)(4)(ii).
The revisions read as follows:
40.6.2 Individual Grounds of Inadmissibility Under INA Section 212(a)(6)
(a) INA Section 212(a)(6)(A): Alien Present Without Admission or Parole or Who Arrives at Undesignated Time or Place
(1) General. INA section 212(a)(6)(A)(i) contains two closely related inadmissibility grounds. The first ground relates to the alien who is “present in the United States without being admitted or paroled.” This inadmissibility ground generally covers those who entered the United States without inspection (and are still in the United States).
The second inadmissibility ground in section 212(a)(6)(A)(i) relates to the alien “who arrives in the United States at any time or place other than as designated by the [Secretary of Homeland Security].” Where the first inadmissibility ground leaves off, this one picks up. Using the present tense (“arrives”), it covers the alien who is in the process of entering U.S. territory without inspection.
The two inadmissibility grounds contained within section 212(a)(6)(A)(i) are thus complementary. Together, they capture aliens who have already achieved entry without inspection and those who are in the process of attempting such entry.
Parole. An alien who is paroled under INA section 212(d)(5)(A) will no longer be inadmissible under the first ground in section 212(a)(6)(A)(i) (present without being admitted or paroled), because the person has been paroled. And since that alien arrived in the United States only in the past, the second inadmissibility ground in section 212(a)(6)(A)(i) is already inapplicable (even without the parole), because the alien is not one who “arrives” (present tense) at an undesignated time or place. It is not a question of parole curing or erasing the second inadmissibility ground. Rather, the alien who arrived in the past is already outside the ambit of that second ground; past arrivals are the subject of the first ground. Thus, an alien who entered the United States without inspection, but subsequently receives parole, is not inadmissible under either of the two inadmissibility grounds contained in section 212(a)(6)(A)(i).
For an alien who entered without inspection, a grant of parole under INA § 212(d)(5)(A) affects at least two of the eligibility requirements for adjustment of status. First, adjustment of status requires that the person be “admissible.” INA § 245(a)(2). As discussed above, parole eliminates one ground of inadmissibility, section 212(a)(6)(A)(i). Second, adjustment of status requires that the alien have been “inspected and admitted or paroled.” INA § 245(a). The grant of parole overcomes that obstacle as well. The alien must still, however, satisfy all the other requirements for adjustment of status. One of those requirements is that, except for immediate relatives of United States citizens and certain other exempt categories listed in INA section 245(c)(2), the person has to have “maintain[ed] continuously a lawful status since entry into the United States.” Parole does not erase any periods of prior unlawful status or any other applicable grounds of inadmissibility. An alien who entered without inspection will therefore remain ineligible for adjustment, even after a grant of parole, unless he or she is an immediate relative or falls within one of the other designated exemptions. Moreover, even an alien who satisfies all the statutory prerequisites for adjustment of status additionally requires the favorable exercise of discretion.
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4) Exemptions and Waivers
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(ii) Waivers. There are no waivers available to applicants inadmissible under INA section 212(a)(6)(A)(i) other than the waivers (or inapplicabilities) described in AFM Chapter 40.6.1(b) or (c). As stated in AFM Chapter 40.6.2(a)(1), however, an alien paroled under INA section 212(d)(5)(A) is not inadmissible under INA section 212(a)(6)(A)(i).
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3. The AFM Transmittal Memorandum button is revised by adding a new entry, in numerical order, to read:
Use
This PM is intended solely for the guidance of USCIS personnel in the performance of their official duties. It is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law or by any individual or other party in removal proceedings, in litigation with the United States, or in any other form or manner.
Contact Information
Questions or suggestions regarding this PM should be addressed through appropriate channels to the Field Operations Directorate.
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Letter to Congress, Aug. 30, 2010 “On a case-by-case basis, DHS utilizes parole and deferred action to minimize periods of family separation, and to facilitate adjustment of status within the United States, by immigrants who are the spouses, parents, and children of military members.”
INA §201(b)(2)(A)(i) “the term ‘immediate relatives’ means the children, spouses, and parents of a citizen of the United States, except that, in the case of parents, such citizens shall be at least 21 years of age.”
Who is covered by PIP?
• “Immediate relatives” of US military personnel
• Active duty and Reserve Component (including National Guard)
• Combat duty not required
• Overseas duty not required
• Military connection to need for PIP
Who Should Not Apply for PIP?
• PIP does not solve other inadmissibility problems
– False claim to USC
– Prior deportation order, ULP bar
– Criminal grounds of inadmissibility
• PIP application may trigger removal
• Issues with parents
– Parents as military dependents
Procedure for PIP
• General Procedure
– File request with local USCIS office
– Do not file with USCIS HQ or lockbox
• After grant of PIP, file one-step adjustment
• Special Issues with Removal Proceedings
• What about family members of LPRs/CPRs?
A parole-in-place request is often proper for immediate military family members who entered the United States without inspection, do not have an eligible visa petition or labor certification filed on or before April 30, 2001, and do not otherwise fall into a special adjustment category.
Parole in place is available to the “spouses, parents, and children” of members of the U.S. Armed Forces. In immigration law, “immediate relatives” describes the spouses, unmarried children under age 21, and parents of U.S. citizens, although a U.S. citizen cannot normally file for a parent unless the U.S. citizen is 21 years old or older.
Parole in place may resolve the issue of whether a spouse, parent, or child has been “admitted or paroled,” but will not resolve immigration problems that involve issues other than ineligibility under INA § 245(a). A grant of parole in place will not, for example, lift a permanent bar for false claim to United States citizenship, work to waive a criminal ground of inadmissibility, relieve an immigrant of the consequences of a prior deportation or removal order, or allow an immigrant to adjust status when the immigrant needs a waiver of some other ground of inadmissibility. Parole in place only cures the problem that an immigrant cannot adjust status without showing that he or she has been “admitted or paroled.” Requesting parole in place may also not be advisable when there is no military-related reason to grant the parole. For example, USCIS may determine not to grant parole in place when the military member is about to be discharged from the military or when the military member is serving as an inactive Reserve member.
Step One: Obtain Parole in Place
In most USCIS field offices, a parole-in-place request consists of a hardship letter signed by the service member and accompanied by supporting documentation, which should be submitted to the local USCIS office having jurisdiction over the service member’s residence or place of duty.
A parole-in-place request letter for a noncitizen spouse is typically addressed to the director of the local USCIS field office or, if the client has an ongoing case with USCIS, the office that has issued the most recent decision regarding the family member’s immigration case. The letter should be accompanied with enclosures demonstrating all the relevant facts that argue for a grant of parole in place.
The opening paragraph of the hardship letter should state that this is a request for a parole in place so that the particular military family member can file an Application to Register Permanent Residence or Adjust Status (Form I-485) while in the United States. The body of the letter should describe the circumstances that led the service member to join the Armed Forces. The letter should then describe the history of the military member’s relationship with the family member seeking parole in place; establishing the bona fide nature of the relationship is extremely important as USCIS is unlikely to grant parole in place in any case in which there are indicators of marriage fraud. The family member’s immigration status should be discussed, including the status of any petitions filed for the family member, such as a Form I-130 (Petition for Alien Relative). The conditions of the family member’s home country at the time when he or she came to the United States should be discussed. The current conditions may be mentioned if they are such that a return to the country would pose a danger to the family member’s health or safety. If the family member is from a country where the military member is unable to travel, this fact should also be mentioned. If applicable, the family member’s loss of commissary and base exchange privileges, military housing, access to military family member health care, and assistance from the family readiness group may be mentioned. Finally, the hardship that the service member would experience if the family member were deported should be described in detail. If the military member or the military member’s children have special needs that make them especially dependent on the family member for support, these needs should be explained and supporting documentation provided where appropriate. At a minimum, the body of the letter must contain the service member’s name, date of birth, place of birth, rank in military, branch of service, and unit of assignment as well as the dates and places of birth of the family member and any children. Any upcoming deployments for which the military member is preparing should be mentioned.
Documents should include at least the following:
• the military member’s birth certificate and proof of U.S. citizenship (if applicable);
• the family member’s birth certificate;
• the birth certificates of any children;
• if the family member is the spouse, the couple’s marriage certificate and evidence of the bona fide nature of the marriage;
• two original passport photos of the family member;
• a copy of any deployment orders for the service member;
• military-related documents demonstrating the relationship, such as:
• the family member’s military identification and privilege card;
• a copy of any Defense Eligibility Enrollment Reporting System (DEERS) enrollment documentation for the family member (Form DD 1172);
• leave and earnings statement for the military member (showing current service and marital status, allotments to family members, or separation allowance);
• orders issued to the military member that name the family member;
• Certificate of Overseas Assignment to Support Application to File Petition for Naturalization, DD Form 1278 (if applicable);
• designation of family member as a beneficiary for the military member’s Servicemembers Group Life Insurance (SGLI) or for Family Servicemembers’ Group Life Insurance (FSGLI);
• evidence of the military member’s health insurance policy on behalf of the military family member;
• documentation showing that the family member resides in base or post housing;
• power of attorney showing that the military member has designated a spouse or parent to act as his or her attorney while the military member is deployed;
• living will or last will and testament designating the spouse or parent or child;
• pre-authorization by the military member for emergency financial assistance for the military family member; or
• military member’s record of emergency data, showing the family member as someone to notify of the military member’s injury or death; and
• additional documents that substantiate the case of hardship.
Parole-in-place determinations are made on a case-by-case basis and are purely discretionary. The client should not assume that his or her request is approved until USCIS officially notifies him or her of the approval. Typically, clients are notified to come for an interview with a USCIS officer who is specially trained to handle parole-in-place applications, and that officer will make an initial determination whether to grant the parole in place, but the officer’s decision will be reviewed at a higher level before the parole-in-place request is approved.
When the request for parole in place has been granted, the military family member will receive a parole document in the form of an I-94 card
Step Two: File and Complete a One-Step Adjustment or Move to Reopen a Previously Denied Adjustment Application
If the client has never filed anything at all with USCIS, once parole in place is granted, he or she should file a “one step” adjustment package with the relevant USCIS lockbox following the same procedures that attorneys use to file similar petitions for other lawfully present immediate relatives of U.S. citizens. Typically, this package includes an immediate relative immigrant visa petition (Form I-130) and an Application to Register for Permanent Residence or Adjust Status (Form I-485) along with related documents including a copy of the parole document.
If the client had received a denial of his or her I-485 but already had an I-130 approved, the attorney should draft a letter addressed to the USCIS field office that issued the denial, requesting that the case be reopened. The attorney should enclose a certified copy of the parole document with the request.
Typically, the one-step adjustment process proceeds like any other adjustment application by the immediate relative of a U.S. citizen. Practitioners report that some USCIS offices are occasionally unfamiliar with the concept of a person adjusting status after being granted parole in place as the immediate family member of someone serving in the U.S. Armed Forces, but supplying the office with a copy of the Janet Napolitano letter to Congress–or, if all else fails, filing a request for assistance with the Citizenship and Immigration Services Ombudsman using the online system or DHS Form 7001–will usually remedy the situation.
FAMILY MEMBERS IN REMOVAL PROCEEDINGS
If the client is in proceedings, the attorney will also file a one-step application with USCIS because an immigration judge does not have jurisdiction to adjudicate an adjustment application by someone who has been granted parole in place.
Parole in place is possible when a person is in removal proceedings. If a military family member is in removal proceedings and is granted parole in place, an immigration judge would be prevented by regulation from adjudicating a follow-on adjustment application. USCIS, however, does have jurisdiction to adjudicate an adjustment application in this situation. Family members in this situation may file a new adjustment application with USCIS–after the parole in place is granted–and then request termination of proceedings without prejudice to allow them to pursue administrative remedies. Counsel may explain that, whether or not the immigration judge terminates, the respondent will still be eligible to adjust status, and, if the case is not terminated and the immigration proceeds, the immigration judge may be facing a future motion to reopen.
PROBLEMS WITH APPLICATIONS BY PARENTS
Although Secretary of Homeland Security Janet Napolitano has specifically advised members of Congress that parole in place is available to facilitate the adjustment of status of parents of U.S. military personnel, some USCIS offices are reluctant to grant parole in place to the parents of U.S. citizens serving in the military. Their reluctance is particularly problematic in that parents are not eligible–based on having a relationship with a son or daughter in the U.S. military–for a waiver of the bar to inadmissibility that is triggered when they depart the United States to apply abroad for a visa after having been in the United States in unlawful status. Parents may even sometimes be statutorily eligible for special immigration benefits as a result of having a son or daughter in the military who died in combat but may be prevented from obtaining those statutory benefits unless they are granted parole in place.
If USCIS is unnecessarily reluctant to grant parole in place to the parent of a U.S. military member, it may be helpful to have the military member enroll the parent in the Defense Enrollment Eligibility Reporting System (DEERS). Under military service regulations, the parents of a military member are considered to be military dependents if they meet certain requirements set by each service. Once parents are determined to be military dependents, they are given access to military facilities and benefits and will possess a military family member identification card. Refer to the regulations of the particular military service to determine when a parent qualifies as a military dependent. Even if a parent does not qualify as a military dependent, however, USCIS should grant parole in place to a parent where there is a strong, military-related need for the parole in place–such as the fact that the parent will be taking care of the military member’s child if the military member deploys overseas.
OBTAINING SUPPORTING DOCUMENTS FROM THE MILITARY
Military family members have occasionally experienced problems obtaining military family member identification documents from military authorities despite the need for USCIS to have such documents in order to provide them for immigration benefits. These problems apparently stem from a misguided 2009 Department of Defense (DOD) regulation that is being interpreted to require DHS Form I-9 documents to verify a family member’s eligibility for DOD benefits.
Although immigration lawyers know that Form I-9 is only supposed to be used by employers to verify the employment eligibility of new hires, and for related DHS worksite enforcement actions, the DOD has been using the form improperly to determine eligibility for military benefits. The DOD has not been authorized by statute to use the Form I-9 to verify a dependent’s eligibility for family member benefits, and yet some DOD entities have been refusing to issue military family member identification cards to military family members who cannot produce the documents listed on the Form I-9. Military family member identification card offices point to a DOD directive as the source of this policy.
Family members who cannot produce the required documents are entered into DEERS with proof of identity and marriage or relationship to their military sponsor, but, until they return with acceptable documents for I-9 purposes, their record is locked and no military identification card office is able to issue a family member identification card to them. The policy allegedly exists so that the family members do not use their military identification cards to obtain drivers licenses and other government-issued identity documents.
Without an identification card, however, a deployed military member’s spouse may be turned away at a military medical facility for lack of a military identification card. To make matters worse, the DOD also reproduced an obsolete version of Form I-9 in the directive. Practitioners who have clients who experience problems obtaining documents from the military as a result of this apparently unlawful instruction should report the matter to their congressional representative or senators.
