Visa Lawyer Blog
Back in November, USCIS issued a policy memorandum to amend the USCIS Adjudicator’s Field Manuel to ensure consistent adjudication of parole requests made on behalf of certain military family members. The policy is intended to ease the stress and anxiety palced upon military service members and veterans that is caused by the lack of immigration status of their close family members in the U.S.
To be eligible for parole in place, it is a discretionary action under the Immigration Nationality Act. The parole memo states that an individual who is a spouse, child, or parent of an active duty member of the U.S. Armed Forces, Selected Reserve of the Ready Reserve, or veteran who previously served in the armed forces or reserves “weighs heavily in favor of parole in place.” The memo further notes that “absent a criminal conviction or other serious adverse factors, parole in place would generally be an appropriate exercise of discretion for such an individual.” As of the date of this memo, it is unclear what type of criminal conviction or “other serious adverse factor” would prevent USCIS from favorably exercising discretion.
The eligibility for adjustment of status is available if the only barrier to adjustment was the lack of inspection and amission or parole. The memo is clear” “an alien who entered the United States without inspection, but subsequently receives parole, is not inadmissible under either of the two inadmissibility grounds…” Therefore, once USCIS grants parole in place, the provision in the INA that requires the applicant be “inspected, admitted or paroled” is satisfied. However, the individual must still satisfy all of the other requirements for adjustment of status, including maintenance of status under the code, if he or she is not an immediate relative or the provisions of the INA do not apply. It is also important to note that parole in place eliminates only those grounds of inadmissibility found in INA 212(a)(6)(A)(i) for purposes of adjustment of status and that all other grounds of inadmissibility must still be overcome.
There are some questions regarding what can be filed when making a Parole in Place request to immigration. Some of those questions include the following below:
Can the I-130/I-485 be filed together with the Parole in Place request?
Until further guidance is provided by USCIS, filing the I-130 and I-485 at the same time does not appear appropriate or practical. In order to adjust under the INA, parole must first be granted. Therefore, to avoid rejection by the lockbox, the I-130 and I-485 should be filed together only after parole in place has been granted and an I-94 evidencing parole has been issued to the applicant.
Can an I-765 application for employment authorization be filed with the I-131 parole in place aplpication?
While the parole memo does not specify that filing an I-765 is allowed with the I-131, the Code of Federal Regulations permits the grant of employment authorization to an alien who has been paroled into the U.S. for emergent reasons or in the public interest. However, parole in place requests filled at the local USCIS field offices have no ability to generate EADs. Because of this, it does not look feasible to grant an EAD requiest in practice. It is more prudent to file the request with the I-130/I-485 once parole in place has been granted, or to file for it separately once parole in place has been granted.
What crimes prevent the favorable exercise of discretion for a parole in place application?
The memo is unclear on what convictions would prevent the favorable exercise of discretion for parole in place. The memo states that “absent a criminal conviction or other serious adverse factors”, parole would generally be an appropriate exercise of discretion. The wording in the memo seems to indicate that one criminal conviction may be sufficient to deny parole in place and/or when read in the context of “other serious adverse factors” that the crime may have to be a “serious” offense. Clarification is still being sought on this point of the memo.
It is clear from the memo that for those who qualify as family members of someone who serves in the armed services that there is a solution to their immigration status. While there are some questions that still need answering for how these applications will be processed, it is clear that the memo is making it easier on military members to help their family members adjust their status in the U.S. If you have any questions regarding this new policy memo and how it can help you out, our office can answer your questions and help guide you through this process.