Adjustment of Status via "Parole in Place" for Family Members of U.S. Citizens in Military

** IMPORTANT NOTE **

The Parole in Place (PIP) policy described in this memo has been in legal flux. Instituted in 2013, it was subsequently undermined by executive orders issued by the Trump Administration, which took office in January 2017. Trump announced that no form of parole should be granted on an across-the-board basis.

While PIP for military members remained available, the denial rate become quite high. The latest development is a positive one for PIP-seekers, as Congress, in the National Defense Authorization Act for 2020, ordered USCIS to "consider, on a case-by-case basis, whether granting the request would enable military family unity that would constitute a significant public benefit" and emphasized that "disruption to military family unity should be minimized" so as to "enhance military readiness" and allow military service people "peace of mind regarding the well-being of their family." Because of the rapidly changing landscape regarding PIP, you'll want to hire an attorney who is familiar with the latest policies and local USCIS practices.

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What is PIP? "Parole in place" (PIP) is a temporary right to remain in the U.S. (in one-year increments), which also provides noncitizen spouses, parents, and ummarried minor children of U.S. citizen members of the U.S. military (current or past) who are in the U.S. after an unlawful entry a path to a U.S. green card that is not available to others.

PIP allows people who already qualify for a green card based on this close family relationship to "adjust status"—that is, apply for lawful permanent residence or a green card—without leaving the United States, despite their past illegal entry and stay. (See I.N.A. § 212(d)(5)(A), 8 U.S.C. § 1182(d)(5)(A).)

(If you are already in removal/deportation proceedings or have a final order of removal on their immigration record, you might still be able to obtain PIP, but it will require you to persuade Immigration and Customs Enforcement or "ICE" to join in your motion (request) to the court that it reopen and/or terminate the proceedings.)

Other immigrants in similar situations whose family members are not U.S. military members, or who overstayed a visa, are not allowed to adjust status, but must leave the U.S. for "consular processing" in order to complete their application for a green card—at which point they might face a three- or ten-year bar upon return, as a penalty for their past unlawful presence. This very trap has kept many noncitizen family members of U.S. military servicepeople from applying for a green card in the past, and created anxiety for all concerned. (The "provisional waiver" can help with this, but not everyone qualifies for it.)

This is a confusing and technical area of immigration law, but we'll try to break it down further, and explain what benefits are and are not available to family members of U.S. citizens in the military through the "parole in place" policy.

Step One: Determine Eligibility for a U.S. Green Card

Not everyone will be helped by the PIP policy. First, you need to figure out whether you are in one of the categories of family members who are eligible as an "immediate relative," that is, either a U.S. citizen's:

• spouse or widow/widower
• unmarried child (under age 21), or
• parent.

As an immediate relative, you are technically eligible for a green card right away, without waiting in line. But you must still get through the application process—and PIP makes that eaiser.

Parole in place helps someone adjust status in two ways. First, someone who wants to adjust must have entered the U.S. legally. The law a person must have been "inspected and admitted or paroled." Parole is a type of permission to be in the United States legally, usually for a temporary period of time. If parole in place is granted, the government is giving you legal entry, without you actually having to go anywhere. That's why it's called parole "in place."

Second, you must be "admissible" to the U.S. in order to adjust status. There are many reasons why a person might be inadmissible and prevented from getting a green card. See Inadmissibility: When the U.S. Can Keep You Out for details. PIP works to remove a ground of inadmissibility that prevents a lot of people from adjusting their status: being in the U.S. after entering the country illegally. With your new permission to be in the U.S. as a result of your PIP approval, the government is saying that you were admitted into—"entered"—the U.S. legally, as far as it's concerned.

PIP, if it eliminates your illegal entry problem, can also take care of another inadmissibility problem: you will no longer have to worry about being barred from return to the U.S. for three or ten years as a penalty for leaving after past unlawful presence, because if you are eligible to adjust status, you won't have to leave the U.S. in the first place to complete the application process.

If you believe you might be inadmissible on any other grounds, you might have trouble successfully applying for a green card and should definitely consult with an experienced immigration attorney.

Step Two: Determine Eligibility for PIP

To be eligible for PIP approval, you must be the spouse, child, or parent of either:

• an Active Duty member of the U.S. Armed Forces
• a current member of the Selected Reserve of the Ready Reserve, or
• someone who has previously served in the U.S. Armed Forces or the Selected Reserve of the Ready Reserve and was honorably discharged.

PIP eligibility isn't automatic for people in these three groups, but they are the only ones who can ask for it.

Here's who will not be granted PIP: Anyone with a criminal conviction or other "serious adverse factors."

Also, parole in place can be granted only on a "discretionary" basis, which means the immigration authorities don't have to grant it if they don't want to—they have to first be convinced that the applicant deserves their help, particularly for "urgent humanitarian reasons or significant public benefit."

If you have anything negative in your personal history that makes you wonder whether immigration officials would prefer to remove you from the U.S., by all means consult an immigration attorney.

Step Three: Apply for "Parole in Place" Approval

You can't jump straight to applying for your green card (adjustment of status). If you do, your application will be rejected.

First, you must take care of the issue of your illegal entry to the U.S., and request parole in place. To do so, prepare and submit the following to U.S. Citizenship and Immigration Services (USCIS):

• Form I-131, Application for Travel Document (handwrite "Military PIP" in Part 2 instead of checking a box)
• Evidence of the family relationship to the U.S. citizen military serviceperson (such as a copy of a birth or marriage certificate, plus any past divorce or death certificates from previous marriages)
• Evidence that the U.S. citizen family member is either an Active Duty member of the U.S. Armed Forces, in the Selected Reserve of the Ready Reserve, or previously served in the U.S. Armed Forces or the Selected Reserve or the Ready Reserve, such as a photocopy of the military identification card (DD Form 1173; make copies of both the front and back).
• Two identical, color, passport-style photographs of the non-citizen applicant, and
• Evidence of any additional favorable discretionary factors that you want USCIS to take into account, such as letters from community leaders or teachers showing your involvement in volunteer activities, personal education, or your children's education.

There is no fee for this application.

See the Form I-131 page of the USCIS website for a free download of the form and instructions on where to mail it.

After USCIS has reviewed your application, it may decide to call you in for an interview. Typically these are short interviews, perhaps even at a filing or intake window rather than an actual office. Nevertheless, if USCIS feels it needs more information in your case, it can conduct a more extensive interview.

Step Four: Apply for Adjustment of Status

Once you have obtained approval of your parole in place, you can proceed with filing an I-130 petition (signed by the U.S. citizen) and adjustment of status application, all at the same time. See an attorney or follow the instructions on the Getting a Family-Based Green Card and Adjustment of Status Procedures.

In addition, be sure to include a copy of your parole in place approval notice from USCIS.