By Attorneys Robert L. Reeves and Eric R. Welsh
Subject to narrow exceptions, an applicant for adjustment of status to permanent residency (or, “green card” applicant) must demonstrate that he or she was lawfully admitted or paroled into the United States. Admission or parole happens at the border when an alien first seeks entry to the U.S. “Admission” is defined by statute as a lawful entry into the United States after inspection and authorization by an immigration officer. “Parole” is authorized permission to enter the United States that is generally granted to an applicant for admission who is deemed inadmissible, but nonetheless has some viable claim to justify entry. If an applicant cannot show that she was admitted or paroled, and is not eligible for some exception to the general rule, the applicant must return to her native country for visa processing. When these aliens leave the United States, they invoke the 3 or 10 year bar for unlawful presence. To avoid that bar, they must show that their U.S. citizen or legal permanent resident (LPR) parent or spouse would suffer extreme hardship if they could not return.
For some, however, the problem of admission or parole may be resolved by a grant of “parole in place.” “Parole in place” is a status that the U.S. Department of Homeland Security can grant to an individual who is on U.S. soil, but who entered without inspection or who is otherwise present without having been admitted or paroled. A person granted “parole in place” is considered to have been paroled into the United States, even if that person never sought inspection. If granted “parole in place,” an individual might be able to apply for a green card without having to return to her native country to face a lengthy and difficult readmission process.
The Department of Homeland Security (DHS) is authorized to grant “parole in place” on a case-by-case basis for “urgent humanitarian reasons” or “significant public benefit.” Under prior policy, the U.S. Citizenship & Immigration Services (USCIS) would only grant parole in place status to undocumented spouses and immediate family members of persons serving in the U.S. Armed Forces.
Recently, however, USCIS has given the immigration community cause for optimism that parole in place will be applied more generously to a wider class of green card applicants. In July 2010, a draft memorandum from USCIS outlined several possible alternatives to immigration reform that USCIS could put in place. The authors of the memorandum suggested that the use of parole in place could be expanded to persons who entered the U.S. as minors without inspection, and whose return to their home country would impose a burden on family members (for example, where sick or disabled family members rely upon that individual’s support). The authors also suggested that parole in place could be granted to the elderly and persons who have lived in the United States for many years and for whom returning to a native country for consular processing would impose a significant financial burden.
Over the past several months, USCIS has issued a number of press releases and memoranda related to prosecutorial discretion and relief for individuals who may be subject to removal from the United States but who pose no immediate threat, and who have significant ties to the United States. It may be possible in the near future for some undocumented immigrants to obtain parole in place based on “urgent humanitarian reasons” or “significant public benefit,” if the person would be immediately eligible for adjustment of status.
Anyone who may be subject to an unlawful presence bar should consult an experienced and knowledgeable immigration attorney before deciding to leave the United States and consular process.