On November 15, 2013, USCIS issued a new policy memorandum clarifying a benefit available to undocumented immediate relatives of U.S. military personnel. The policy, which applies to undocumented spouses, children, and parents of both active military personnel and veterans, is intended to promote family unity and reduce military personnel’s anxiety regarding their loved ones’ immigration status.
Under the general rules of immigration law, immigrants currently in the United States who entered unlawfully must return to their home countries before they can get legal status through a U.S. citizen family member. Rather than qualifying to adjust status in the United States, they must instead consular process, completing an interview at the U.S. consulate in their home country to determine whether they will be allowed to return to the United States lawfully. Many of these individuals are then subject to a bar for unlawful presence, prohibiting re-entry to the U.S. for three to ten years unless they can show “extreme and unusual hardship” would be suffered by their U.S. citizen family member. Though a recent measure has been implemented to try to limit the period of family separation, it has limited application, the immigrant is still required to leave the country to consular process, and there is no guarantee of approval at the consulate.
In the past, a statutory tool known as humanitarian parole has been used to ease this process for undocumented family members of U.S. military personnel. Humanitarian parole exists for rare circumstances in which urgent humanitarian reasons or a significant public interest favor allowing an individual to enter the United States when no other lawful basis for admission exists. Granted on a case-by-case basis, it is typically used for individuals seeking admission from outside of the United States. However, in the context of military families, a procedure known as “parole in place” has developed to allow an undocumented person already in the United States to obtain parole by virtue of his or her relation to a member of the U.S. military. Once the immigrant is granted parole, he or she may be able to adjust status rather than having to consular process and request a waiver for unlawful presence.
The recently-released USCIS policy memorandum establishes firm guidelines for a practice that has been inconsistently exercised (or not exercised) in the past. It states that, absent a criminal conviction or other serious negative factors, parole in place should generally be granted to immediate relatives of active duty members of the U.S. Armed Forces, individuals in the Selected Reserve of the Ready Reserve, and veterans of the U.S. Armed Forces or Reserve. Clear documentary requirements are set out. The policy memo also clarifies the legal issue about whether parole in place cures certain inadmissibility grounds, paving the way for an individual granted parole in place to adjust status in the United States.
The new policy memorandum offers greater security to undocumented family members of U.S. military personnel. However, it is important to note that the practice only benefits immediate relatives of U.S. citizens – that is, a U.S. citizen’s spouse, child under the age of 21 (including step-child), or parent. Additionally, parole only cures the inadmissibility ground of having entered without inspection, and an applicant for adjustment of status will still have to meet all the other statutory requirements in order to obtain lawful permanent resident status.