By Nancy E. Miller
With very few exceptions, one who wishes to adjust status to that of a lawful permanent resident must have entered the United States lawfully. In order to enter the United States lawfully, one must present oneself for inspection at a designated place of entry. The applicant must then satisfy the officer from Customs and Border Patrol (CBP) that she is eligible for admission. If the documentation is in order and the CBP officer is convinced that the applicant does qualify for admission, she is admitted for a particular period of time. If the applicant is not eligible for admission, she may be eligible for parole. An alien paroled into the United States is physically allowed to enter the country but legally remains an applicant for admission who is considered to be constructively standing at the border. This distinction has legal ramifications which are beyond the scope of this article.
The Immigration & Nationality Act (INA) gives the Secretary of the Department of Homeland Security (DHS) (or his agents, including CBP or Immigrations & Customs Enforcement [ICE] officers) 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. Parole can be applied for at three different times. An alien with a pending application for adjustment of status who wishes to take a short trip outside the United States and not abandon that application must apply for and receive advance parole before they depart. Upon return, they are not admitted but, rather, they are paroled into the country. They are then permitted to continue to pursue their request for adjustment. Parole is also commonly applied for by those outside the United States who wish to enter for emergent reasons. An example is when a U. S. citizen or resident family member is stricken with a life-threatening illness and the applicant is not eligible for a visa. He or she may be permitted to enter on parole.
Parole may also be granted to aliens who are already physically present in the United States without inspection or admission. This procedure is called parole –in-place. Under the INA, parole in place may be granted to any alien applying for admission to the United States, including an alien present in the United States who has not been admitted. The decision whether to grant parole at all is discretionary. Generally, the government policy is to grant parole in place sparingly. The fact that the individual is a spouse, child or parent of an Active Duty member of the U. S. Armed Forces has been held to weigh heavily in favor of parole in place. However, under a Policy Memorandum issued on November 15, 2013, that policy has been expanded. Parents, spouses and children of individuals who are in the Selected Reserve of the Ready Reserve or who previously served in the U.S. Armed Forces or the Selected Reserve of the Ready Reserve as well as those currently in Active Duty may apply for parole in place. The grant of parole in place is not automatic to one with the requisite family relationship to a member of the military. As with all requests for discretionary relief, the applicant has the burden of showing that he is eligible for a favorable exercise of discretion. Determination is based on a balancing of the positive and negative factors. Criminal convictions and other serious adverse factors will weigh heavily against relief. Effective presentation is essential to a successful application.
The grant of parole in place to one who did not enter the United States lawfully opens up an otherwise nonexistent avenue for adjustment of status. One who entered the United States without inspection is inadmissible under the INA. He is also ineligible to adjust status, even if he is the immediate relative of a United States citizen. Once the alien is granted parole in place, he is no longer inadmissible under the ground of lack of inspection. Assuming he is applying for adjustment as the immediate relative of a U.S. citizen (which means as the parent, spouse or under-21-year-old single child of the U.S. citizen), he will then be eligible to complete the immigration process through adjustment in the U.S.
The recipient of parole in place must still satisfy all the other requirements for adjustment of status. The expansion of parole in place is a wonderful New Year’s present to those who are immediate relatives of current or retired members of the Active and Reserve military. Non-citizens who entered without inspection and who believe they may benefit from this expansion should consult a knowledgeable and experienced immigration lawyer to find out if they are right.