Parole in Place: Keeping Families Together

Who Qualifies for Parole in Place?

The main beneficiaries of this program are those who are currently eligible to apply for an I-601A waiver and then seek consular processing. However, not all who are eligible for the 601A waiver are eligible for the new parole in place program.

In order to be considered for an individualized discretionary grant of parole in place under this process, a person seeking this grant who is married to a United States citizen must meet the following criteria”

• Be present in the United States without admission or parole;
• Have been continuously physically present in the United States since at least June 17, 2014, through the date of filing the parole in place request;
• Have a legally valid marriage to a U.S. citizen on or before June 17, 2024’
• Have no disqualifying criminal history, and
• Submit biometrics, undergo required background checks and national security, public safety, and border security vetting, and be found not to pose a threat to national security or public safety.

In addition to spouses, stepchildren may also qualify. A stepchild must be present without admission or parole, have a parent who entered into a legally valid marriage with a U.S. citizen on or before June 17, 2024, and before the child’s 18th birthday, have been continuously present since June 17, 2024, have no disqualifying criminal history, and submit to the same background screening as their parent.

It appears that even if you are not eligible to adjust status, for example, if you have a ground of inadmissibility such as the “permanent bar,” you still might be eligible for a grant of parole in place. This would allow you to apply for a work permit only. The parole-in-place grant does not waive or erase grounds of inadmissibility other than someone’s manner of entry into the country.

Do not be fooled by those who say this program is a waiver and will guarantee legal resident status, as it absolutely does not. If you are granted parole in place through this program, you are given a form called an I-94. Think of this form as putting you in the same place as someone who entered the country legally. You will, at the point of being granted parole, then be eligible to file your application for residency and have your interview in the United States instead of returning to your country of origin.

However, just like many people who entered with a visa, you may still be inadmissible into the country and have your application for residency denied. It is highly recommended you have a full analysis with an experienced Phoenix immigration attorney prior to applying for residency to ensure you are admissible. Give us a call at 602-910-4040 to schedule a consultation with one of our experienced immigration attorneys.

1. Present in the United States Without Admission or Parole.

Quite simply put, if you entered with a visa, either a tourist visa, a work visa, or any other kind of visa, then you are not present without admission or parole. Even though your status may have expired, you are not considered eligible for the program as you did not originally enter without admission or parole.

To understand why someone who entered with a visa would not apply for this program, it helps to understand the benefits given because of this program. Someone who is approved is given an I-94. This document is stamped with a date, essentially putting that person in the same place legally as someone who entered with a visa.

The grant of parole is, for all intents and purposes, giving the person a “legal entry” so they can now adjust their status. So, someone who enters with a visa already has the benefit of having legal entry. Therefore, they are not eligible for this new program because they do not need it.

2. Have been continuously present since June 17, 2014.

This one seems pretty straightforward; the person seeking parole has to have been in the country continuously since June 17, 2014. This was ten years before the program was announced. USCIS wants to ensure that families can remain together, so they are, in essence, requiring the person to have already spent a significant amount of time in the country.

It is important to understand that this does not mean the marriage has to have been over ten years ago. Even if the person was not married for the entire period, the person may still be eligible if they have continuously lived in the country.

3. Have a legally valid marriage to a U.S. citizen on or before June 17, 2024.

The main question to ask here is: when did the marriage to the U.S. Citizen occur? If it was before June 17, 2024, then we should be okay to proceed with the application. However, if the marriage were two days after June 17, 2024, even if the couple had been together for ten years, unfortunately, they would not qualify.

This goes to a bigger point: living in union, or what some call a common law marriage, does not count for USCIS. This is the case even though people have been together for twenty years and have multiple children, own properties, etc., if they were not legally married, they cannot apply for this program.

If the person is a widow but already has an approved I-130, then they still can apply for this program, or they must file an I-360 within two years of the death of their U.S. citizen spouse.

4. Have no disqualifying criminal history.

USCIS is being much more strict with criminal cases and pending criminal cases. USCIS states that all pending criminal charges will disqualify someone from the program. Anyone with a pending case must first resolve that case and then apply. And you must be very careful how that case ends up because anyone with ANY felony conviction will be disqualified.

In addition to anyone with a felony conviction being disqualified, anyone with the following types of convictions, even if only misdemeanors, will be disqualified.

• Murder, torture, rape, or sexual abuse;
• Offenses involving firearms, explosive materials, or destructive devices;
• Offenses relating to peonage, slavery, involuntary servitude, and trafficking in persons;
• Aggravated assault;
• Offenses relating to child pornography, sexual abuse or exploitation of minors, or solicitation of minors;
• Domestic violence, stalking, child abuse, child neglect, or child abandonment; and
• Controlled substance offenses (other than simple possession of 30 grams or less of marijuana).

Notably, some of these offenses still do not automatically disqualify a person from obtaining permanent residence status. For example, a misdemeanor domestic violence conviction is not a ground for inadmissibility. This means someone with a misdemeanor domestic violence conviction is not eligible for this program but still might be able to attain an I-601A waiver and Consular Process.

The harshness with criminal convictions continues. Even if the person has a misdemeanor conviction not listed above, any other criminal conviction will result in a rebuttable presumption of ineligibility for parole in place. Minor traffic violations will not result in this rebuttable presumption.

To overcome the rebuttable presumption, USCIS will look at the severity of the conviction and balance that with multiple factors. Factors that can be considered include:

• Age of the conviction(s) (remoteness in time);
• Requestor’s age at the time of the offense and conviction, including whether the requestor was a juvenile at the time of the offense;
• Sentence or penalty imposed;
• Evidence of subsequent rehabilitation;
• Nature of the conviction, including whether the conduct at issue was non-violent;
• Whether the conviction was an isolated offense when considered against the rest of the requestor’s history (including consideration of whether multiple criminal convictions were on the same date and may have arisen out of the same act);
• Existence of a mental or physical condition that may have contributed to the criminal conduct;
• Requestor’s particular vulnerability, including any physical or mental condition requiring treatment or care in the United States;
• Requestor’s status as a victim of or witness to criminal activity, including domestic violence, civil rights violation, or labor rights violation under investigation by a labor agency, particularly if related to the criminal conduct at issue;
• Requestor’s status, or that of their U.S. citizen spouse, as a current or former member of the U.S. military;
• Requestor’s status as the primary caregiver for a U.S. citizen child or elderly parent or in-law;
• Evidence of the requestor’s good character, such as property ties, business ties, or value and service to the community;
• Length of requestor’s presence in the United States;
• Requestor’s status as a caregiver for an individual with disabilities, including U.S. citizen in-laws or siblings;
• Impact on other family members, including family members who are U.S. citizens and LPRs or
• Other factors USCIS considers relevant in its exercise of discretion.

A Phoenix criminal defense attorney should analyze any criminal conviction closely, and any application involving a criminal case needs to be presented with much more supporting documents than a regular case.

5. Prior Removal Orders.

Anyone with a prior removal order who left the country subsequent to that order is ineligible for the program. However, noncitizens with unexecuted final removal orders still have a chance. Those with unexecuted final removal orders will be presumptively ineligible for parole in place. This means they still have a chance, but similar to those with non-disqualifying criminal convictions, they will have to show stronger positive equities.

USCIS will also be looking into what happened with the underlying case. To determine whether the requestor has overcome the presumption of ineligibility, USCIS will consider:

• Lack of proper notice;
• Age of the noncitizen at the time the removal order was issued;
• Ineffective assistance of counsel or being a victim of fraud in connection with immigration representation; or
• Other extenuating factors or considerations such as:
  • Inability to understand proceedings because of language barriers;
  • Status as a victim of domestic violence;
  • Other extenuating personal factors, such as the requestor’s limited resources (e.g., lack of housing that would have impacted the ability to appear)
• A physical or mental condition requiring care or treatment during immigration proceedings.

6. Case by Case Determination.

USCIS has made clear that simply checking the box on each criterion will not result in an automatic grant. The grant of parole will be a discretionary action made on a case-by-case determination. A few factors the government will look at include:

• Community ties;
• Advanced or young age;
• Length of presence in the United States;
• Status as a parent or caregiver of a U.S. citizen child or elderly parent or in-law;
• Status as a caregiver for an individual with disabilities, including U.S. citizen in-laws or siblings;
• Physical or mental condition requiring care or treatment in the United States;
• Status as a victim of or witness to a crime or civil rights violation, or labor rights violation under investigation by a labor agency;
• Impact on other family members, including family members who are U.S. citizens and LPRs;
• Status, or that of their U.S. citizen spouse, as a current or former member of the U.S. military; or
• Other positive factors about which the requestor wishes to provide information.

This is not a complete list, and USCIS may consider any relevant factors in their discretionary analysis.

What Is the Cost to Apply for Parole in Place?