Notice2024-18725
Implementation of Keeping Families Together
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 20, 2024
Issuing agencies
Homeland Security Department
Abstract
This notice announces the U.S. Department of Homeland Security's (DHS) implementation of the Keeping Families Together process for certain noncitizen spouses and stepchildren of U.S. citizens who are present in the United States without admission or parole to request parole in place under existing statutory authority. Granting parole in place, on a case-by-case basis, to eligible noncitizens under this process will achieve the significant public benefit of promoting the unity and stability of families, increasing the economic prosperity of American communities, strengthening diplomatic relationships with partner countries in the region, reducing strain on limited U.S. government resources, and furthering national security, public safety, and border security objectives.
Full Text
<html>
<head>
<title>Federal Register, Volume 89 Issue 161 (Tuesday, August 20, 2024)</title>
</head>
<body><pre>
[Federal Register Volume 89, Number 161 (Tuesday, August 20, 2024)]
[Notices]
[Pages 67459-67490]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-18725]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF HOMELAND SECURITY
[CIS No. 2779-24; DHS Docket No. USCIS-2024-0010]
RIN 1615-ZC09
Implementation of Keeping Families Together
AGENCY: Department of Homeland Security.
ACTION: Notice of implementation of the Keeping Families Together
process.
-----------------------------------------------------------------------
SUMMARY: This notice announces the U.S. Department of Homeland
Security's (DHS) implementation of the Keeping Families Together
process for certain noncitizen spouses and stepchildren of U.S.
citizens who are present in the United States without admission or
parole to request parole in place under existing statutory authority.
Granting parole in place, on a case-by-case basis, to eligible
noncitizens under this process will achieve the significant public
benefit of promoting the unity and stability of families, increasing
the economic prosperity of American communities, strengthening
diplomatic relationships with partner countries in the region, reducing
strain on limited U.S. government resources, and furthering national
security, public safety, and border security objectives.
DATES: DHS will begin using the Form I-131F, Application for Parole in
Place for Certain Noncitizen Spouses and Stepchildren of U.S. Citizens,
for this process on August 19, 2024.
FOR FURTHER INFORMATION CONTACT: Ren[aacute] Cutlip-Mason, Chief,
Humanitarian Affairs Division, Office of Policy and Strategy, U.S.
Citizenship and Immigration Services, Department of Homeland Security,
by mail at 5900 Capital Gateway Drive, Camp Springs, MD 20746, or by
phone at 800-375-5283.
SUPPLEMENTARY INFORMATION:
I. Background
Family unity is a bedrock objective of the U.S. immigration system.
Nearly 60 years ago, the Immigration and Nationality Act of 1965, a
foundation of modern U.S. immigration law, enshrined as a core
principle the importance of promoting the ability of U.S. citizens to
unify with their relatives--a principle that endures to this day.\1\
Yet, amidst growing demands and challenges, including chronic
underfunding of our immigration \2\ and visa processing backlogs
compounded by the COVID-19 pandemic, our
[[Page 67460]]
immigration system has often been challenged in its ability to fully
achieve this core principle. U.S. citizens and their noncitizen family
members have in many cases faced lengthy processing backlogs and
potential years-long separation to access immigration benefits intended
by Congress to promote family unity.
---------------------------------------------------------------------------
\1\ Public Law 89-236 (1965).
\2\ For example, in the Fiscal Year (FY) 2024 President's
Budget, USCIS requested $865 million in appropriated funding, but
Congress only provided $281 million. See Department of Homeland
Security U.S. Citizenship and Immigration Services Budget Overview,
Fiscal Year 2024 Congressional Justification, available at <a href="https://www.dhs.gov/sites//default/files//2023-03/U.S.%20CITIZENSHIP/%20AND%20IMMIGRATION%20SERVICES_Remediated.pdf">https://www.dhs.gov/sites//default/files//2023-03/U.S.%20CITIZENSHIP/%20AND%20IMMIGRATION%20SERVICES_Remediated.pdf</a> (last visited July
16, 2024); Department of Homeland Security Appropriations Act, 2024,
Public Law 118-47, div. C (2024); Department of Homeland Security
U.S. Citizenship and Immigration Services Budget Overview, Fiscal
Year 2025 Congressional Justification, available at <a href="https://www.dhs.gov/sites/default/files/2024-04/2024_0325_us_citizenship_and_immigration_services.pdf">https://www.dhs.gov/sites/default/files/2024-04/2024_0325_us_citizenship_and_immigration_services.pdf</a> (last visited
July 16, 2024). The February 2024 Bipartisan Border Agreement would
have provided $20 billion in funding for border management,
including $4 billion to USCIS.
---------------------------------------------------------------------------
DHS estimates that there are approximately 765,000 noncitizens in
the United States who are married to U.S. citizens and lack lawful
immigration status.\3\ Estimates indicate that the median time these
noncitizens have been in the United States is 20 years, and they
collectively live with more than 2.5 million U.S. citizen family
members, raising and caring for more than 1.6 million U.S. citizen
children.\4\ While U.S. immigration law provides noncitizens who are
beneficiaries of approved immigrant visa petitions \5\ filed by their
U.S. citizen spouses the opportunity to apply for adjustment of status
to that of a lawful permanent resident (LPR) while remaining in the
United States, there are certain requirements to adjust status that
prevent many noncitizens from availing themselves of this benefit.\6\
In particular, to apply for LPR status while in the United States, an
applicant generally must have been ``inspected and admitted or
paroled'' into the United States.\7\
---------------------------------------------------------------------------
\3\ U.S. Dep't of Homeland Security, Office of Homeland Security
Statistics (OHSS) analysis of OHSS Estimates of the Unauthorized
Immigrant Population Residing in the United States: Jan. 2018-Jan.
2022 (``OHSS Analysis''), tbl. 3.
\4\ Id. tbls. 4, 5. Estimated data shows that the median amount
of time the entire population of noncitizen spouses of U.S. citizens
has been in the United States is 20 years; the median time the PIP-
eligible population of noncitizen spouses of U.S. citizens (where
the noncitizen spouses have been in the United States for at least
10 years) has been in the United States is 23 years.
\5\ This is filed on Form I-130, Petition for Alien Relative.
\6\ Adjustment of status is the process by which certain
noncitizens may seek LPR status while remaining in the United
States, as opposed to consular processing, the process by which
certain noncitizens seek an immigrant visa at a United States
embassy or consulate abroad and then are admitted to the United
States as an LPR at a port of entry. See INA sec. 245(a), 8 U.S.C.
1255(a); cf. INA secs. 221-222, 8 U.S.C. 1201-1202 (immigrant visa
applications).
\7\ INA sec. 245(a), 8 U.S.C 1255(a).
---------------------------------------------------------------------------
DHS estimates that more than two-thirds of noncitizens without
lawful immigration status who are married to U.S. citizens \8\ are
present in the United States without admission or parole, and as a
result, are generally not eligible for adjustment of status.\9\ They
must therefore depart the United States and seek an immigrant visa at a
U.S. embassy or consulate abroad. However, if they choose to depart the
United States, they face uncertainty about whether they will be granted
an immigrant visa and be able to return to the United States.\10\ The
noncitizen also must remain abroad while waiting for their immigrant
visa application to be processed at a U.S. embassy or consulate and any
necessary waiver applications to be processed by U.S. Citizenship and
Immigration Services (USCIS), and as a result, they may be separated
from their U.S. citizen family members for months or years.\11\ The
length and uncertainty of the process, along with the prospect of
either separating from their U.S. citizen family members or uprooting
them to travel abroad creates a disincentive and makes it difficult for
noncitizens to pursue LPR status despite their eligibility to apply.
---------------------------------------------------------------------------
\8\ OHSS Analysis, supra note 3, tbl. 3.
\9\ INA sec. 245(a), 8 U.S.C. 1255(a).
\10\ For most of these noncitizens, their departure to pursue
consular processing and seeking admission through the application of
an immigrant visa makes them inadmissible, and seeking of admission
through the application for an immigrant visa within three years
from their departure (if they accrued more than 180 days but less
than one year of unlawful presence in the United States during a
single stay), or within ten years from their departure or removal
(of departure or removal (if they accrued one year or more of
unlawful presence in the United States during a single stay)), will
make them inadmissible under INA section 212(a)(9)(B)(i), 8 U.S.C.
1182(a)(9)(B)(i). See, e.g., Matter of Duarte-Gonzalez, 28 I. & N.
Dec. 688, 689-90 (BIA 2023); Matter of Rodarte-Roman, 23 I. & N.
Dec. 905, 908-10 (BIA 2006) (holding that the 3-year and 10-year
unlawful presence bars are not triggered unless and until the
noncitizen departs from the United States). This ground of
inadmissibility may be waived, but approval of such a waiver is
discretionary and requires applicants to ``establish [ ] . . . that
the refusal of [the applicant's] admission . . . would result in
extreme hardship to the citizen or [LPR] spouse or parent'' of the
applicant. INA sec. 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v).
\11\ As discussed in greater detail in this notice, the
provisional waiver process through the Form I-601A, Application for
Provisional Unlawful Presence Waiver, permits certain noncitizens to
apply for a provisional waiver of the unlawful presence grounds of
inadmissibility under INA section 212(a)(9)(B)(v), 8 U.S.C.
1182(a)(9)(B)(v), prior to their departure from the United States.
While an important mechanism, the Form I-601A provisional waiver
process has become significantly backlogged in recent years, still
requires the noncitizen to depart and remain separated from their
U.S. citizen relatives during consular processing, and does not
provide a guarantee that an immigrant visa will ultimately be
granted. See 8 CFR 212.7(e) (describing the provisional unlawful
presence waiver process).
---------------------------------------------------------------------------
Recognizing the harms that families and communities face every day
as a result of flaws in the U.S. immigration system, President Joseph
R. Biden in 2021 directed DHS and other agencies to ``identify barriers
that impede access to immigration benefits and fair, efficient
adjudications of these benefits and make recommendations on how to
remove these barriers, as appropriate and consistent with applicable
law.'' \12\ In response to the President's directive, DHS and its
immigration components, including USCIS, have taken several steps to
promote accessibility and increase efficiency in the immigration
system.\13\
---------------------------------------------------------------------------
\12\ Exec. Order No. 14012, Restoring Faith in Our Legal
Immigration System and Strengthening Integration and Inclusion
Efforts for New Americans, 86 FR 8277 (Feb. 5, 2021).
\13\ See USCIS, Completing an Unprecedented 10 Million
Immigration Cases in Fiscal Year 2023, USCIS Reduced Its Backlog for
the First Time in Over a Decade (Feb. 9, 2024), <a href="https://www.uscis.gov/EOY2023">https://www.uscis.gov/EOY2023</a>; USCIS Fiscal Year 2022 Progress Report (Dec.
2022), <a href="http://www.uscis.gov/sites/default/files/document/reports/OPA_ProgressReport.pdf">www.uscis.gov/sites/default/files/document/reports/OPA_ProgressReport.pdf</a>.
---------------------------------------------------------------------------
On June 18, 2024, President Biden announced that DHS would take
action to preserve the unity of U.S. citizens and their noncitizen
spouses and noncitizen stepchildren who currently cannot access LPR
status without first departing the United States.\14\ In furtherance of
the President's directive, DHS is now establishing a process, through
its existing discretionary parole authority under INA section
212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A),\15\ for DHS to consider, on a
case-by-case basis, parole in place requests filed by certain
noncitizen spouses and stepchildren of U.S. citizens. If granted parole
in place, these noncitizens, if otherwise eligible, could apply for
adjustment of status to that of an LPR, rather than having to depart
the United States to pursue an immigrant visa, as the parole in place
would satisfy the ``inspected and admitted or paroled''
requirement.\16\
---------------------------------------------------------------------------
\14\ The White House, FACT SHEET: President Biden Announces New
Actions to Keep Families Together, June 18, 2024, available at
<a href="https://www.whitehouse.gov/briefing-room/statements-releases/2024/06/18/fact-sheet-president-biden-announces-new-actions-to-keep-families-together/">https://www.whitehouse.gov/briefing-room/statements-releases/2024/06/18/fact-sheet-president-biden-announces-new-actions-to-keep-families-together/</a>.
\15\ INA sec. 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A) (``The
[Secretary] may . . . in his discretion parole into the United
States temporarily under such conditions as he may prescribe only on
a case-by-case basis for urgent humanitarian reasons or significant
public benefit any alien applying for admission to the United States
. . .'').
\16\ See Section II.B. of this notice for additional information
on parole in relation to adjustment of status.
---------------------------------------------------------------------------
This process does not change or eliminate the eligibility criteria
for adjustment of status to that of an LPR. Noncitizens who are granted
parole in place under this process will still have to satisfy all other
statutory and regulatory requirements when applying to adjust status to
that of an LPR, including that they have an approved immigrant visa
petition based on a bona fide relationship to a U.S. citizen, are
admissible to the United States, and merit a grant of adjustment of
status as
[[Page 67461]]
a matter of discretion.\17\ Eligibility for a family-based immigrant
visa petition (Form I-130, Petition for Alien Relative),\18\ and
application to adjust status to that of an LPR (Form I-485, Application
to Register Permanent Residence or Adjust Status), will be determined
in a distinct and separate process from the parole in place
adjudication.
---------------------------------------------------------------------------
\17\ See INA sec. 245(a), (c), 8 U.S.C. 1255(a), (c); 8 CFR part
245.
\18\ And in the case of certain widows or widowers, where
eligible as described in this notice, Form I-360, Petition for
Amerasian, Widow(er), or Special Immigrant.
---------------------------------------------------------------------------
This process will be available to certain noncitizen spouses of
U.S. citizens who are present in the United States without admission or
parole; who have been continuously physically present in the United
States for a minimum of ten years as of June 17, 2024 (that is,
continuously physically present since June 17, 2014 and through the
date of filing the request for parole); who have a legally valid
marriage to a U.S. citizen as of June 17, 2024; who have no
disqualifying criminal history; \19\ who do not pose a threat to
national security, public safety, or border security; and who merit
parole in place as a matter of discretion. Certain noncitizen
stepchildren of U.S. citizens may also request parole in place under
this process, provided that they have been continuously physically
present in the United States without admission or parole since June 17,
2024 through the date of filing, have no disqualifying criminal history
and do not pose a threat to national security or public safety, meet
the INA's definition and requirements of a stepchild \20\ of a U.S.
citizen, and merit parole in place as a matter of discretion.
---------------------------------------------------------------------------
\19\ Noncitizens who have been convicted of serious offenses,
such as felonies, will be ineligible for this process. See Section
V.A. of this notice for additional detail on disqualifying criminal
history.
\20\ See INA sec. 101(b)(1), 8 U.S.C. 1101(b)(1).
---------------------------------------------------------------------------
Only noncitizens who are ``applicants for admission'' to the United
States may be eligible for parole.\21\ Noncitizens who lack lawful
status but were inspected and admitted to the United States are not
eligible for parole.\22\ This parole in place process is available
specifically to noncitizens who are present in the United States
without admission or parole and who remain applicants for admission.
Requests for parole in place under this process will be considered on a
case-by-case basis in the exercise of discretion. Positive and negative
discretionary factors will be considered when determining whether to
grant parole in place to a noncitizen, based on significant public
benefit or urgent humanitarian reasons. DHS estimates that 500,000
noncitizen spouses and 50,000 noncitizen stepchildren of U.S. citizens
may meet the requirements to request parole in place under this
process.\23\
---------------------------------------------------------------------------
\21\ See INA sec. 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A); see also
INA sec. 235(a)(1), 8 U.S.C. 1225(a)(1) (``An alien present in the
United States who has not been admitted or who arrives in the United
States (whether or not at a designated port of arrival and including
an alien who is brought to the United States after having been
interdicted in international or United States waters) shall be
deemed for purposes of this chapter an applicant for admission.'').
\22\ Noncitizens who are immediate relatives of a U.S. citizen
and were admitted to the United States on a valid nonimmigrant visa
but have remained in the United States beyond the period of stay
authorized will generally meet the ``inspected and admitted or
paroled'' requirement for adjustment of status without the need for
parole in place. See INA sec. 245(a), 8 U.S.C. 1255(a); INA sec.
245(c)(2), 8 U.S.C. 1255(c)(2). Similarly, noncitizens who were
paroled into the United States on or after their last arrival would
also meet this requirement.
\23\ OHSS Analysis, supra note 3, tbl. 3.
---------------------------------------------------------------------------
As described elsewhere in this Federal Register notice (notice),
the authority to parole applicants for admission ``in place''--i.e.,
while the noncitizen is present within the United States without having
been admitted--is consistent with DHS's longstanding interpretation of
its authorities, and DHS continues to believe that it reflects the best
reading of the statute.\24\ The parole authority has been used for over
15 years in the specific context of preserving family unity for
military families.\25\ In 2010, USCIS provided guidance to its officers
on considering parole in place requests submitted by noncitizen family
members of U.S. military service members, which enables them to adjust
status without leaving the United States,\26\ an authority Congress
legislatively reaffirmed in 2019.\27\ Congress has also expressed
support in legislation for the use of DHS's parole authority in certain
instances as a discretionary tool where justified for urgent
humanitarian reasons or significant public benefit.\28\
---------------------------------------------------------------------------
\24\ See, e.g., Memorandum from Paul W. Virtue, INS General
Counsel, to INS officials, Authority to Parole Applicants for
Admission Who Are Not Also Arriving Aliens, Legal Op. No. 98-10,
1998 WL 1806685 (Aug. 21, 1998), superseded in part on other grounds
by Memorandum from Gus P. Coldebella, DHS General Counsel, to DHS
officials, Clarification of the Relation Between Release under
Section 236 and Parole under Section 212(d)(5) of the Immigration
and Nationality Act (Sept. 28, 2007) (``Coldebella Memo''),
available at <a href="https://www.uscis.gov/sites/default/files/document/legal-docs/Coldebella_Memo.pdf">https://www.uscis.gov/sites/default/files/document/legal-docs/Coldebella_Memo.pdf</a>; see also, e.g., Ortega-Cervantes v.
Gonzales, 501 F.3d 1111, 1118 (9th Cir. 2007) (discussing 1998 INS
General Counsel Memo and 1999 INS Cuban parole policy, and stating
that ``[w]e see nothing [in the INA] that would preclude the
government from paroling . . . into the United States under Sec.
1182(d)(5)(A)'' noncitizens ``who are currently present in the
United States but who were not inspected upon arrival at a port of
entry'' and that ``[t]he [INS] General Counsel's memorandum is
consistent with our conclusion . . . that there is no per se bar on
paroling unlawful entrants into the United States pursuant to Sec.
1182(d)(5)(A)'').
\25\ Immigration Needs of America's Fighting Men and Women,
Hearing Before the Subcomm. on Immigr., Citizenship, Refugees,
Border Sec., & Int'l L. of the Comm. on the Judiciary, H.R., 110th
Cong. 15 (2008) (testimony of Margaret Stock, Attorney and
Lieutenant Colonel, Military Police Corps, United States Army
Reserve).
\26\ While the USCIS policy memorandum articulating the use of
parole in place for military family members was issued in 2013, as a
matter of practice, USCIS has been issuing parole in place for
members of this population since 2010. Making this process available
only to certain spouses and stepchildren of U.S. citizens is
consistent with past sparing uses of parole in place. See id. DHS
continues to view use of parole in place as consistent with the best
reading of the statute, as described in section II in this notice.
For reasons discussed throughout this notice, making it available to
this population also is a better practice than retaining the status
quo. See USCIS Policy Memorandum, PM-602-0091, Parole of Spouses,
Children and Parents of Active Duty Members of the U.S. Armed
Forces, the Selected Reserve of the Ready Reserve, and Former
Members of the U.S. Armed Forces or Selected Reserve of the Ready
Reserve and the Effect of Parole on Inadmissibility under
Immigration and Nationality Act sec. 212(a)(6)(A)(i) (Nov. 15, 2013)
(``USCIS Military Parole in Place Memorandum''), available at
<a href="https://www.uscis.gov/sites/default/files/document/memos/2013-1115_Parole_in_Place_Memo_.pdf">https://www.uscis.gov/sites/default/files/document/memos/2013-1115_Parole_in_Place_Memo_.pdf</a>, superseded in part by USCIS Policy
Memorandum, PM-602-1104, Discretionary Options for Designated
Spouses, Parents, and Sons and Daughters of Certain Military
Personnel, Veterans, and Enlistees (Nov. 23, 2016), available at
<a href="https://www.uscis.gov/sites/default/files/document/memos/PIP-DA_Military_Final_112316.pdf">https://www.uscis.gov/sites/default/files/document/memos/PIP-DA_Military_Final_112316.pdf</a>.
\27\ See National Defense Authorization Act for Fiscal Year
2020, Public Law 116-92, sec. 1758 (2019) (8 U.S.C. 1182 note) (NDAA
2020) (``the importance of the parole in place authority of the
Secretary of Homeland Security is reaffirmed'').
\28\ See, e.g., Foreign Operations, Export Financing, and
Related Programs Appropriations Act of 1990, Public Law 101-167,
sec. 599E (8 U.S.C. 1255 note) (authorizing granting permanent
residence to parolees from the Soviet Union, Vietnam, Laos, and
Cambodia); Illegal Immigration Reform and Immigrant Responsibility
Act of 1996, Public Law 104-208, div. C, sec. 646 (8 U.S.C. 1255
note) (providing for adjustment of status for noncitizens from
Poland and Hungary who had been denied refugee status but who had
been ``inspected and granted parole into the United States''); NDAA
2020, sec. 1758, supra note 27 (expressing congressional support for
an ongoing parole program for relatives of U.S. military members and
considering in each case-by-case determination whether parole would
advance family unity that would constitute a significant public
benefit); Extending Government Funding and Delivering Emergency
Assistance Act of 2021, Public Law 117-43, sec. 2502 (8 U.S.C. 1101
note) (providing refugee benefits to Afghans paroled under INA
section 1182(d)(5) and funds to support those benefits); Ukraine
Supplemental Appropriations Act of 2022, Public Law 117-128, sec.
401 (8 U.S.C. 1101 note) (providing benefits to Ukrainians paroled
under INA sec. 212(d)(5), 8 U.S.C. 1182(d)(5) and funds to support
those benefits).
---------------------------------------------------------------------------
As explained more fully in Section IV of this notice, the Secretary
of Homeland Security's (``Secretary'') exercise of the parole authority
in this manner will provide a significant public benefit to the United
States, including to
[[Page 67462]]
the impacted U.S. citizens, noncitizens, their families, and their
communities at large. First, it will promote family unity by enabling
U.S. citizen spouses and children to remain with their noncitizen
family members while their noncitizen family members apply for
adjustment of status to that of an LPR, thus promoting stability and
preventing avoidable disruptions to these families. Second, it will
advance U.S. economic and labor interests by enabling paroled
noncitizens to work lawfully in the United States and contribute
economically to their families and communities.\29\ Third, it will
further critical U.S. diplomatic interests and U.S. foreign policy
objectives of managing migration, increasing economic stability, and
fostering security in the United States and in partner countries in the
region. Fourth, it will preserve limited resources across U.S.
government agencies that may otherwise be expended on consular
processing and removal proceedings. Fifth, it will further national
security, public safety, and border security objectives by encouraging
noncitizens to provide information for background and security checks.
---------------------------------------------------------------------------
\29\ See Economic Analysis section in this notice.
---------------------------------------------------------------------------
II. Parole Authority and Existing Family Unity Parole Processes
A. Parole Authority
The Secretary, and those other officials as designated by the
Secretary,\30\ have the discretionary authority under INA section
212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A), to parole any applicant for
admission ``into the United States temporarily under such conditions as
[the Secretary] may prescribe only on a case-by-case basis for urgent
humanitarian reasons or significant public benefit.''
---------------------------------------------------------------------------
\30\ See Delegation to the Bureau of Citizenship and Immigration
Services (Delegation No. 0150.1, Sec. II(O)) (June 5, 2003) (vesting
parole authority in USCIS through its Director and subordinate
officers).
---------------------------------------------------------------------------
DHS's parole authority extends to noncitizens inside the United
States who have not been ``admitted'' as defined in the INA through a
practice known as ``parole in place.'' \31\ Parole is available to an
``applicant for admission,'' which the INA defines in relevant part as
``[a]n alien present in the United States who has not been admitted or
who arrives in the United States.'' \32\ Because the INA creates a
distinct meaning for ``admission,'' noncitizens who have entered the
United States without having been ``admitted'' are still considered
``applicants for admission,'' even though they are physically inside
the United States, and may be paroled in accordance with INA section
212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A). Longstanding DHS legal opinions
have affirmed the availability of parole in place under U.S.
immigration law, as discussed elsewhere in this notice.\33\
---------------------------------------------------------------------------
\31\ See INA sec. 101(a)(13)(A), 8 U.S.C. 1101(a)(13)(A),)
(defining the terms ``admission'' and ``admitted'' as ``the lawful
entry of the alien into the United States after inspection and
authorization by an immigration officer''); INA sec. 212(d)(5), 8
U.S.C. 1182(d)(5); see also USCIS Policy Manual, Volume 7,
Adjustment of Status, Part B, 245(a) Adjustment, Chapter 2,
Eligibility Requirements, Section 3, Parole [7 USCIS PM B.2 (A)(3)]
(``Parole in Place: Parole of Certain Noncitizens Present Without
Admission or Parole''), available at <a href="https://www.uscis.gov/policy-manual/volume-7-part-b-chapter-2">https://www.uscis.gov/policy-manual/volume-7-part-b-chapter-2</a> (last updated July 16, 2024).
\32\ See INA sec. 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A); INA sec.
235(a)(1), 8 U.S.C. 1225(a)(1) (``An alien present in the United
States who has not been admitted or who arrives in the United States
(whether or not at a designated port of arrival and including an
alien who is brought to the United States after having been
interdicted in international or United States waters) shall be
deemed for purposes of [the INA] an applicant for admission. A
noncitizen placed in removal proceedings pursuant to INA sec. 240, 8
U.S.C. 1229a, may also be an applicant for admission, and such an
individual could be considered for this parole in place process even
if released from custody under INA sec. 236(a), 8 U.S.C. 1226(a), as
long as they have not been admitted. See INA sec. 240(a)(2), 8
U.S.C. 1229a(a)(2) (``An alien placed in proceedings under this
section may be charged with any applicable ground of inadmissibility
under section 1182(a) of this title. . .'').
\33\ See supra note 24 and Section II.C of this notice.
---------------------------------------------------------------------------
Parole is neither an admission of the noncitizen to the United
States nor a determination of admissibility, and a parolee remains an
applicant for admission during the period of parole in the United
States.\34\ DHS sets the duration of the period of parole based on the
purpose for granting the parole request and may also impose conditions
on parole.\35\ DHS may terminate parole in its discretion at any
time.\36\ By regulation, parolees may apply for and be granted
employment authorization to work lawfully in the United States during
their period of parole.\37\ While in a period of parole, noncitizens do
not accrue unlawful presence for purposes of inadmissibility under INA
sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I), 8 U.S.C.
1182(a)(9)(B)(i) and 1182(a)(9)(C)(i)(I).\38\
---------------------------------------------------------------------------
\34\ INA sec. 101(a)(13)(B), 8 U.S.C. 1101(a)(13)(B); INA sec.
212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A).
\35\ INA sec. 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A).
\36\ 8 CFR 212.5(e) (providing that a noncitizen's parole may
terminate automatically or upon written notice). In addition,
neither the denial of a parole in place request nor a parole
termination determination is subject to judicial review. See INA
sec. 242(a)(2)(B)(ii), 8 U.S.C. 1252(a)(2)(B)(ii); Bolante v.
Keisler, 506 F.3d 618, 621 (7th Cir. 2007); Samirah v. O'Connell,
335 F.3d 545, 549 (7th Cir. 2003); see also Vazquez Romero v.
Garland, 999 F.3d 656, 665 (9th Cir. 2021) (``We have previously
concluded that the jurisdiction-stripping provision of [8 U.S.C.]
1252(a)(2)(B)(ii) applies to discretionary parole decisions under
sec. 1182(d)(5).'' (citing Hassan v. Chertoff, 593 F.3d 785, 790
(9th Cir. 2010))).
\37\ 8 CFR 274a.12(c)(11).
\38\ INA sec. 212(a)(9)(B)(ii), 8 U.S.C. 1182(a)(9)(B)(ii)
(``[A]n alien is deemed to be unlawfully present in the United
States if the alien is present in the United States after the
expiration of the period of stay authorized by the Attorney General
or is present in the United States without being admitted or
paroled.'').
---------------------------------------------------------------------------
The parole authority has long been interpreted to allow for
designation of specific groups of noncitizens for whom parole should be
favorably considered as furthering a significant public benefit or for
urgent humanitarian reasons, as long as the parole of each noncitizen
within the group furthers such significant public benefit or addresses
such urgent humanitarian reasons, as determined on a discretionary,
case-by-case basis.\39\ Congress has repeatedly expressed support in
legislation for the use of DHS's parole authority to benefit
individuals falling within particular groups.\40\
---------------------------------------------------------------------------
\39\ See infra notes 65-72 and Section II.D. of this notice for
a discussion of Existing Family Unity Parole Policies; see also,
e.g., Reno v. Flores, 507 U.S. 292, 313-14 (1993) (holding that a
statute requiring ``individualized determination[s]'' does not
prevent immigration authorities from using ``reasonable presumptions
and generic rules''); Fook Hong Mak v. INS, 435 F.2d 728, 730 (2d
Cir. 1970) (upholding INS's authority to ``determine[ ] certain
conduct to be so inimical to the statutory scheme that all persons
who have engaged in it shall be ineligible for favorable
consideration'' and observing that there is no legal principle
forbidding an agency that is ``vested with discretionary power''
from determining that it will not use that power ``in favor of a
particular class on a case-by-case basis''); cf. INA sec.
212(d)(5)(B), 8 U.S.C. 1182(d)(5)(B) (providing that DHS may parole
a noncitizen determined to be a refugee only if DHS ``determines
that compelling reasons in the public interest with respect to that
particular alien require that the alien be paroled into the United
States rather than be admitted as a refugee'' (emphasis added)).
\40\ See supra note 28.
---------------------------------------------------------------------------
B. Parole in Relation to Adjustment of Status Eligibility
To be eligible for adjustment of status, an applicant generally
must, among other requirements, have been ``inspected and admitted or
paroled into the United States.'' \41\ A grant of parole, including
parole in place, under INA
[[Page 67463]]
section 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A), satisfies this threshold
requirement.\42\
---------------------------------------------------------------------------
\41\ INA sec. 245(a); 8 U.S.C. 1255(a). To apply for adjustment
of status under INA sec. 245(a), the noncitizen must also have an
immigrant visa ``immediately available to him'' or her at the time
of filing. INA sec. 245(a)(3), 8 U.S.C. 1255(a)(3). Because there is
no numerical limit on immigrant visas for spouses of U.S. citizens,
see INA sec. 201(b)(2)(A)(i), 8 U.S.C. 1151(b)(2)(A)(i), immigrant
visas are immediately available to them upon approval of a Form I-
130. See 8 CFR 245.2(a)(2)(i)(B). Cuban nationals who are paroled
also may be eligible for adjustment of status under the Cuban
Adjustment Act, Public Law 89-732 (1966) (8 U.S.C. 1255 note),
without regard to the availability of an immigrant visa.
\42\ DHS may also release a noncitizen present without admission
or parole from custody on ``conditional parole,'' also known as a
release on one's own recognizance, under INA sec. 236(a)(2)(B), 8
U.S.C. 1226(a)(2)(B), pending INA sec. 240, 8 U.S.C. 1229a, removal
proceedings. Conditional parole under INA sec. 236(a)(2)(B),
however, does not equate to parole under INA sec. 212(d)(5), 8
U.S.C. 1182(d)(5), and therefore does not constitute parole for
purposes of adjustment of status under INA sec. 245, 8 U.S.C. 1255,
or the Cuban Adjustment Act. See Matter of Cabrera-Fernandez, 28 I&N
Dec. 747, 748-50 (BIA 2023) (reaffirming Matter of Castillo-Padilla,
25 I&N Dec. 257 (BIA 2010), aff'd, 417 F. App'x 888 (11th Cir.
2011)); Coldebella Memo, supra note 24 (clarifying that
``conditional parole'' under section INA 236(a)(2)(B), 8 U.S.C.
1226(a)(2)(B), does not constitute parole under INA section
212(d)(5), 8 U.S.C. 1182(d)(5)). However, such noncitizens may
remain eligible to request a grant of parole in place if they have
not otherwise been ``admitted'' to the United States and meet the
other requirements.
---------------------------------------------------------------------------
The noncitizen must also satisfy all other requirements for
adjustment of status, including establishing that they are not
inadmissible under any applicable grounds,\43\ and that they merit a
favorable exercise of discretion including not being a threat to public
safety or national security.\44\
---------------------------------------------------------------------------
\43\ See INA sec. 245, 8 U.S.C. 1255 (requirements for
adjustment of status); INA sec. 212(a), 8 U.S.C. 1182(a) (grounds of
inadmissibility). While noncitizens generally must also have
``maintain[ed] continuously a lawful status since entry into the
United States'' to qualify for adjustment of status under INA sec.
245(a), 8 U.S.C. 1255(a), this restriction does not apply to
immediate relatives, which includes spouses and children (including
stepchildren) of U.S. citizens. See INA sec. 245(c), 8 U.S.C.
1255(c) (bars to adjustment of status eligibility); INA sec.
201(b)(2)(A)(i), 8 U.S.C. 1151(b)(2)(A)(i) (defining ``immediate
relatives''); INA sec. 101(b)(1), 8 U.S.C. 1151(b)(1) (defining
``child''). See also discussion of unlawful presence supra note 10.
\44\ INA sec. 245(a), 8 U.S.C. 1255(a).
---------------------------------------------------------------------------
C. Existing Parole in Place Processes
Parole in place is currently used for certain noncitizens to
promote family unity and remove barriers to adjustment of status. As
federal courts, including the Supreme Court, have long recognized,
``parole creates something of legal fiction,'' as a paroled noncitizen
is allowed to be present in the United States temporarily but remains
an ``applicant for admission'' as defined in INA 235(a)(1), 8 U.S.C.
1225(a)(1), pending the granting of relief from removal such as asylum
or adjustment of status.\45\ Through this well-established legal
fiction, the statute has long authorized the parole of applicants for
admission ``into the United States''--whether in the form of temporary
release from immigration custody or otherwise--even after they have
crossed into the United States and are already physically present in
the country.\46\
---------------------------------------------------------------------------
\45\ Duarte v. Mayorkas, 27 F.4th 1044, 1058 (5th Cir. 2022);
see INA sec. 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A) (providing that
parole shall not be regarded as admission); INA sec. 101(a)(13)(B),
8 U.S.C. 1101(a)(13)(B) (same); see also, e.g., Sale v. Haitian
Ctrs. Council, Inc., 509 U.S. 155, 175 (1993) (observing that
``[u]nder the INA, both then and now, those seeking `admission'' and
trying to avoid `exclusion' were already within our territory (or at
its border)'' could be paroled under INA section 212(d)(5), 8 U.S.C.
1182(d)(5), ``but the law treat[s] them as though they had never
entered the United States at all''); Leng May Ma v. Barber, 357 U.S.
185, 189 (1958) (noting the legal fiction that a parolee is
considered to be constructively remaining at the border applying for
admission); Cruz-Miguel v. Holder, 650 F.3d 189, 197 n.12 (2d Cir.
2011) (``Although [noncitizens] paroled under 8 U.S.C. 1182(d)(5)(A)
physically enter the United States temporarily, they are
nevertheless deemed to remain constructively detained at the
border.'').
\46\ The phrase ``parole into the United States'' in INA section
212(d)(5)(A) allows for the temporary release or continued presence
of ``any'' applicant for admission--even though already present in
the United States--within U.S. territory pending accomplishment of
the purpose of the parole. INA sec. 212(d)(5), 8 U.S.C. 1182(d)(5).
At the same time, as described in settled case law, the parolee is
deemed to be constructively at the border, and courts have
consistently understood ``parole into the United States'' as being
applicable to applicants for admission who are already present in
U.S. territory (e.g., arriving noncitizens who were subject to
detention pending exclusion proceedings), even if, under pre-IIRIRA
law, they were not considered to have effected an ``entry,'' as that
term was formerly defined, see 8 U.S.C. 1101(a)(13) (1994), into the
United States for immigration purposes). See, e.g., Sale, 509 U.S.
at 175; Leng May Ma, 357 U.S. at 189; see also Abramski v. United
States, 573 U.S. 169, 179 (2014) (``[W]e must (as usual) interpret
the relevant words in a statute not in a vacuum, but with reference
to the statutory context, structure, history and purpose.'')
(quotation marks omitted); FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120, 133 (2000) (underscoring the ``fundamental canon of
statutory construction that the words of a statute must be read in
their context and with a view to their place in the overall
statutory scheme''); cf. Bruesewitz v. Wyeth LLC, 562 U.S. 223, 243
(2011) (emphasizing the force of ``consistent judicial gloss''
assigned to a statutory ``term or concept'').
---------------------------------------------------------------------------
Congress preserved this legal fiction in IIRIRA while expanding the
legal concept of an ``applicant for admission.'' Congress provided that
any noncitizen who is present in the United States without admission
``shall be deemed . . . an applicant for admission,'' \47\ and that
although the Secretary may parole ``any [noncitizen] applying for
admission,'' such parole does not constitute an admission, and the
parolee remains an applicant for admission.\48\ Thus, ``even
noncitizens already physically present in the United States'' after
having entered without inspection remain applicants for admission
unless and until they are admitted or removed and ``may be eligible for
humanitarian or public benefit parole under [section 212(d)(5)(A) of
the INA] by virtue of their status as applicants for admission.'' \49\
Put differently, because noncitizens physically present without
authorization are deemed ``applicants for admission,'' they are
therefore ``applying for admission to the United States,'' \50\ and
thus eligible under the parole statute for parole ``into the United
States.'' \51\
---------------------------------------------------------------------------
\47\ INA sec. 235(a)(1), 8 U.S.C. 1225(a)(1).
\48\ INA sec. 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A); see Cruz-
Miguel, 650 F.3d at 197-98 & n.12.
\49\ Cruz-Miguel, 650 F.3d at 198; see also Ortega-Cervantes,
501 F.3d at 1116 (same).
\50\ INA sec. 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A). For purposes
of the parole statute, ``applying for admission'' is synonymous with
``applicant for admission.'' See id. (providing that when DHS
determines the purposes of parole of the noncitizen ``have been
served,'' the noncitizen's ``case shall continue to be dealt with in
the same manner as that of any other applicant for admission to the
United States'') (emphasis added); 8 CFR 212.5 (1959) (referring to
parole at ports of entry under INA sec. 212(d)(5) of ``any . . .
applicant for admission'' at the INS district director's
discretion).
\51\ Id.; see Ortega-Cervantes, 501 F.3d at 1116.
---------------------------------------------------------------------------
DHS, like the former INS, has long understood section 212(d)(5)(A)
as allowing for parole of applicants for admission who entered the
United States without inspection and admission at a port of entry and
were present in the country beyond the border. The INS General Counsel
issued an opinion in 1998 adopting that straightforward, reasonable
construction of the statute.\52\ In 2007, the DHS General Counsel
issued an opinion endorsing the 1998 INS General Counsel opinion in
relevant part.\53\ The Department also, for example, issued a Federal
Register notice in 2002 providing that applicants for admission who are
encountered in the United States within two years of having entered by
sea unlawfully and who are placed in expedited removal proceedings may
be ``paroled into the United States'' under INA section 212(d)(5)(A), 8
U.S.C. 1182(d)(5)(A).\54\
---------------------------------------------------------------------------
\52\ Memorandum from Paul W. Virtue, INS General Counsel, to INS
officials, Authority to Parole Applicants for Admission Who Are Not
Also Arriving Aliens, Legal Op. No. 98-10, 1998 WL 1806685 (Aug. 21,
1998). Based on that 1998 INS legal opinion, the INS Commissioner
issued a policy statement authorizing the parole of certain Cuban
nationals who entered the United States without inspection, taking
into consideration the fact that parole could allow an application
for adjustment of status under the Cuban Adjustment Act of 1966
after one year. See Memorandum from Doris Meissner, INS
Commissioner, to INS officials, Eligibility for Permanent Residence
Under the Cuban Adjustment Act Despite Having Arrived at a Place
Other than a Designated Port-of-Entry (Apr. 19, 1999), reprinted in
76 Interpreter Releases 676, 684, App. 1 (May 3, 1999).
\53\ Memorandum from Gus P. Coldebella, DHS General Counsel, to
DHS officials, Clarification of the Relation Between Release under
Section 236 and Parole under Section 212(d)(5) of the Immigration
and Nationality Act (Sept. 28, 2007) (``Coldebella Memo''),
available at <a href="https://www.uscis.gov/sites/default/files/document/legal-docs/Coldebella_Memo.pdf">https://www.uscis.gov/sites/default/files/document/legal-docs/Coldebella_Memo.pdf</a>.
\54\ Notice Designating Aliens Subject to Expedited Removal
Under Section 235(b)(1)(A)(iii) of the Immigration and Nationality
Act, 67 FR 68924, 68925 (Nov. 13, 2002). The Department, likewise,
for the past two decades, has routinely ``parole[d] into the United
States'' under INA section 212(d)(5)(A) certain applicants for
admission who are encountered within 14 days and 100 miles of the
U.S. land border after having crossed into the country without
inspection and being placed in expedited removal proceedings. See
Designating Aliens for Expedited Removal, 69 FR 48877, 48879 (Aug.
11, 2004).
---------------------------------------------------------------------------
[[Page 67464]]
In 2013, relying on existing statutory authorities, USCIS issued
policy guidance on the parole in place process for family members of
certain current or former members of the U.S. Armed Forces. Pursuant to
that guidance, a grant of parole enables those family members to meet
the ``inspected and admitted or paroled'' requirement for adjustment of
status.\55\ In November 2014, the Secretary directed USCIS to expand on
these policies to include family members of U.S. citizens and LPRs who
seek to enlist in the U.S. Armed Forces.\56\
---------------------------------------------------------------------------
\55\ USCIS Military Parole in Place Memorandum, supra note 26.
\56\ Memorandum from Jeh Johnson, Secretary, U.S. Dep't of
Homeland Security, Families of U.S. Armed Forces Members and
Enlistees (Nov. 20, 2014) (directing USCIS to issue expanded
policies on the use of both parole in place and deferred action for
certain spouses, children, and parents of individuals seeking to
enlist in the U.S. Armed Forces as well as those currently serving),
available at <a href="https://www.dhs.gov/sites/default/files/publications/14_1120_memo_parole_in_place.pdf">https://www.dhs.gov/sites/default/files/publications/14_1120_memo_parole_in_place.pdf</a>.
---------------------------------------------------------------------------
In 2019, Congress explicitly recognized that parole in place is a
legitimate use of parole authority under INA section 212(d)(5).\57\
That legislation ``reaffirmed'' ``the importance of the Secretary's
parole in place authority.'' \58\ More specifically, this emphasized
that the use of ``parole in place reinforces the objective of military
family unity,'' and directed DHS to ``consider, on a case-by-case
basis, whether granting the [parole in place] request would enable
military family unity that would constitute a significant public
benefit.'' \59\ That same year, Congress provided a new long-term
immigration status specifically for certain noncitizens in the
Commonwealth of the Northern Mariana Islands who had been paroled in
place by USCIS for various reasons, including family unity, and
authorized continued parole in place for those noncitizens pending
adjudication of their applications for the new status.\60\
---------------------------------------------------------------------------
\57\ See NDAA 2020 sec. 1758(a) (referring to ``parole in place
under section 212(d)(5)''), supra note 27.
\58\ NDAA 2020, sec. 1758(b)(3), supra note 27.
\59\ NDAA 2020, sec. 1758(a) and (b), supra note 27.
\60\ See Northern Mariana Islands Long-Term Legal Residents
Relief Act, Public Law 116-24, sec. 2 (2019) (48 U.S.C. 1806(e)(6)).
---------------------------------------------------------------------------
In the National Defense Authorization Act for FY 2020, Congress
legislatively reaffirmed the use of parole for noncitizens already
physically present within the United States, indicating Congress's
intent that parole in place of individuals already present in the
United States constitutes a parole ``into the United States.\61\
Likewise, at least two courts of appeals have endorsed this long-
standing understanding of the INA, which DHS continues to believe
constitutes the best reading of the statute.\62\
---------------------------------------------------------------------------
\61\ See NDAA 2020, sec. 1758(b)(3), supra note 27.
\62\ See Cruz-Miguel, 650 F.3d at 198; Ortega-Cervantes, 501
F.3d at 1116.
---------------------------------------------------------------------------
According to USCIS data, since it announced the parole in place
process for certain military family members in 2013, approximately
82,000 noncitizens have applied for, and 61,000 noncitizens have
received, parole in place as the spouse, child, or parent of a
servicemember, reservist, or veteran of the U.S. Armed Forces, as of
June 30, 2024.\63\
---------------------------------------------------------------------------
\63\ DHS, USCIS, Office of Performance and Quality (OPQ),
Computer-Linked Application Information Management System (CLAIMS) 3
(queried 6/2024).
---------------------------------------------------------------------------
D. Existing Family Unity Parole Processes
Past Secretaries have similarly exercised the parole authority to
promote family unity for noncitizens outside the United States who are
waiting for a family-based immigrant visa to become available.\64\
---------------------------------------------------------------------------
\64\ See Texas v. Biden, 20 F.4th 928, 947 (5th Cir. 2021)
(noting that ``[q]uintessential modern uses of the parole power
include . . . paroling aliens who qualify for a visa but are waiting
for it to become available'') (citing T. Alexander Aleinikoff et
al., Immigration and Citizenship: Process and Policy 299 (9th ed.
2021)), rev'd on other grounds, 597 U.S. 785 (2022).
---------------------------------------------------------------------------
For example, the Cuban Family Reunification Parole (CFRP) Program,
established in 2007, allows U.S. citizens and LPRs to request parole
for certain eligible family members in Cuba who are the beneficiaries
of an approved Form I-130.\65\ If parole is authorized, these family
members may travel to the United States before their immigrant visa
priority dates are current and seek parole at a U.S. port of entry to
reunify with their family members while awaiting availability of an
immigrant visa. In 2014, USCIS launched the Haitian Family
Reunification Parole (HFRP) Program, a similar process for U.S.
citizens and LPRs with eligible family members in Haiti.\66\ In 2016,
USCIS announced a family reunification process to allow certain
Filipino World War II veterans in the United States to reunite with
their eligible family members who are waiting for their immigrant visas
to become available.\67\
---------------------------------------------------------------------------
\65\ Cuban Family Reunification Parole Program, 72 FR 65588
(Nov. 21, 2007).
\66\ Implementation of Haitian Family Reunification Parole
Program, 79 FR 75581 (Dec. 18, 2014).
\67\ Filipino World War II Veterans Parole Policy, 81 FR 28097
(May 9, 2016).
---------------------------------------------------------------------------
More recently, DHS announced the implementation of new Family
Reunification Parole (FRP) processes for nationals of Colombia,\68\
Ecuador,\69\ El Salvador,\70\ Guatemala,\71\ and Honduras,\72\ and
their immediate family members, who have approved family-based
immigrant visa petitions filed on their behalf by a U.S. citizen or
LPR. DHS also announced updates to the existing CFRP and HFRP processes
to adopt the same modernized and streamlined processing steps
implemented for the newer FRP processes.\73\
---------------------------------------------------------------------------
\68\ Implementation of a Family Reunification Parole Process for
Colombians, 88 FR 43591 (July 10, 2023).
\69\ Implementation of a Family Reunification Parole Process for
Ecuadorians, 88 FR 78762 (Nov. 16, 2023).
\70\ Implementation of a Family Reunification Parole Process for
Salvadorans, 88 FR 43611 (July 10, 2023).
\71\ Implementation of a Family Reunification Parole Process for
Guatemalans, 88 FR 43581 (July 10, 2023).
\72\ Implementation of a Family Reunification Parole Process for
Hondurans, 88 FR 43601 (July 10, 2023).
\73\ Implementation of Changes to the Cuban Family Reunification
Parole Process, 88 FR 54639 (Aug. 11, 2023); Implementation of
Changes to the Haitian Family Reunification Parole Process, 88 FR
54635 (Aug. 11, 2023).
---------------------------------------------------------------------------
III. Parole in Place Process for Certain Noncitizen Spouses and
Stepchildren of U.S. Citizens
Under this new process, USCIS will consider requests for parole in
place from noncitizen spouses of U.S. citizens who are present in the
United States without admission or parole and have been continuously
physically present for at least 10 years as of June 17, 2024 (that is,
continuously physically present since June 17, 2014), and remain
continuously physically present through the date they file their
request for parole in place. USCIS will also consider parole in place
requests from certain noncitizen stepchildren of U.S. citizens provided
that they have been continuously physically present in the United
States without admission or parole since June 17, 2024 and through the
filing of their request for parole in place, and meet the INA's
definition of a stepchild of a U.S. citizen.\74\
---------------------------------------------------------------------------
\74\ INA sec. 101(b)(1)(B), 8 U.S.C. 1101(b)(1)(B) (defining
``child'' as an unmarried person under age twenty-one, who is, inter
alia, ``a stepchild, whether or not born out of wedlock, provided
the child had not reached the age of eighteen years at the time the
marriage creating the status of stepchild occurred'').
---------------------------------------------------------------------------
[[Page 67465]]
Upon receipt of a properly filed parole in place request,\75\ USCIS
will determine whether the noncitizen meets the criteria outlined in
this notice, whether a grant of parole in place is warranted based on
significant public benefit or urgent humanitarian reasons, and whether
the requestor merits a favorable exercise of discretion. All parole in
place requests will be considered on a case-by-case basis as required
under the parole statute.\76\
---------------------------------------------------------------------------
\75\ See Section VI. of this notice for additional information
regarding proper filing of a request for parole in place under this
process.
\76\ See INA 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A).
---------------------------------------------------------------------------
USCIS will exercise its unfettered discretion in administering this
process and prioritizing requests consistent with the statute and any
applicable regulations. For example, if it determines that the evidence
submitted does not establish eligibility for parole in place, USCIS
may, in its discretion, issue a request for evidence, issue a notice of
intent to deny, or deny the request without requesting additional
information or evidence.\77\ In addition, requestors may be required to
appear for an interview.\78\ There is no right to the adjudication of a
parole request, including within any given period. Nor is there a right
to an administrative appeal.
---------------------------------------------------------------------------
\77\ See 8 CFR 103.2(b)(8).
\78\ See 8 CFR 103.2(b)(9).
---------------------------------------------------------------------------
USCIS will consider on a case-by-case basis: criminal history; any
previous removal proceedings and removal orders; the results of
background checks, which include national security and public safety
vetting; positive and adverse factors presented by the requestor; and
any other relevant information available to or requested by USCIS.
Noncitizens who have been convicted of serious offenses will be
ineligible for this process, as will those whom USCIS determines, in
its discretion, otherwise pose a threat to national security, public
safety, or border security.\79\ Other criminal convictions, excluding
minor traffic offenses, will result in a rebuttable presumption of
ineligibility for parole in place. This presumption can be rebutted on
a case-by-case basis by weighing the seriousness of the conviction
against mitigating factors relating to the conviction as well as other
positive factors that suggest that the noncitizen merits a favorable
exercise of discretion. Noncitizens with pending criminal charges will
be ineligible for parole in place under this process, until those
charges are resolved.\80\
---------------------------------------------------------------------------
\79\ As discussed further in Section V.A. of this notice, there
is an exception for border security concerns for stepchildren who
otherwise meet the criteria for parole in place under this process.
\80\ See Section V.A. of this notice.
---------------------------------------------------------------------------
Eligible noncitizens who are currently in removal proceedings and
do not have a final order of removal may request parole in place.
However, if the noncitizen would otherwise constitute a national
security, public safety, or border security concern,\81\ they will be
ineligible to receive parole in place pursuant to this process.\82\
USCIS will evaluate, in the exercise of its discretion, the existence
and circumstances of the removal proceedings in determining whether the
noncitizen may be granted parole in place. Noncitizens with unexecuted
final removal orders are presumptively ineligible for this process. In
the exercise of its discretion, USCIS will evaluate the facts and
circumstances underlying the unexecuted final removal order, including
the basis for the removal order, to determine whether the noncitizen
may overcome the presumption of ineligibility and be granted parole in
place.\83\ In so doing, USCIS will coordinate as necessary with the
U.S. Immigration and Customs Enforcement (ICE) Office of the Principal
Legal Advisor (OPLA).
---------------------------------------------------------------------------
\81\ See, e.g., Memorandum from Alejandro N. Mayorkas,
Secretary, U.S. Dep't of Homeland Security to Tae D. Johnson, Acting
Director, U.S. Immigration and Customs Enforcement, et al.,
Guidelines for the Enforcement of Civil Immigration Law (Sept. 30,
2021) (``September 2021 Guidelines''), available at <a href="https://www.ice.gov/doclib/news/guidelines-civilimmigrationlaw.pdf">https://www.ice.gov/doclib/news/guidelines-civilimmigrationlaw.pdf</a>.
\82\ As noted above and discussed further in Section V.A. of
this notice, noncitizens present border security concerns if they
were apprehended while attempting to enter the U.S. unlawfully or if
they entered unlawfully after November 1, 2020. There is an
exception to this for stepchildren who otherwise meet the criteria
for parole in place under this process.
\83\ A noncitizen with an unexecuted final removal order who
overcomes this presumption and is granted parole in place, and who
wishes to pursue adjustment of status, may file a motion to reopen
or a motion to reopen and terminate removal proceedings with EOIR.
Noncitizens may request U.S. Immigration and Customs Enforcement
(ICE) Office of the Principal Legal Advisor (OPLA) to join (or not
oppose) a motion to reopen and dismiss or terminate submitted to
EOIR, depending on the facts and circumstances. Any such motion
would be decided on its own merits in a distinct and separate
process from the parole in place adjudication.
---------------------------------------------------------------------------
Parole determinations are reserved to the exclusive discretionary
authority of DHS. If parole in place is denied, there is no right to an
administrative appeal, and neither immigration judges nor the Board of
Immigration Appeals (BIA) have the authority to consider or review
parole requests.\84\
---------------------------------------------------------------------------
\84\ See Matter of Castillo-Padilla, 25 I. & N. Dec. 257, 261
(BIA 2010), aff'd, 417 F. App'x 888 (11th Cir. 2011).
---------------------------------------------------------------------------
Nothing in this notice or the implementation of this parole in
place process is intended to limit DHS's authority to take enforcement
actions in accordance with the INA and consistent with governing
policies and practices. DHS may initiate and pursue enforcement action
pursuant to its enforcement priorities \85\ under its existing
authorities notwithstanding a noncitizen's intent to request parole in
place, eligibility to request parole in place, filing of a request for
parole in place, or grant of parole in place under this process.
---------------------------------------------------------------------------
\85\ See, e.g., September 2021 Guidelines, supra note 81.
---------------------------------------------------------------------------
IV. Basis for Parole--Significant Public Benefit
Granting parole in place on a case-by-case basis to noncitizens who
meet the criteria outlined in this notice and merit a favorable
exercise of discretion will generally provide a significant public
benefit to the United States, including to the impacted noncitizens,
their families, and their communities at large by: (1) promoting family
unity and stability; (2) strengthening the U.S. economy and the
economic position of families and U.S. communities; (3) advancing
diplomatic relationships and key foreign policy objectives of the
United States; (4) reducing strain on limited U.S. government
resources; and (5) furthering national security, public safety, and
border security objectives. Through a case-by-case assessment, USCIS
will consider whether parole for each requestor individually will
provide a significant public benefit to further these goals.
Promoting Family Unity and Stability
This process will promote family unity by allowing certain
noncitizens who have long lived in the United States to apply for
permanent residence, if otherwise eligible, in the United States
without separating them from their U.S. citizen spouses and, in many
cases, their U.S. citizen children. Courts have long recognized
preservation of family unity to be a ``prevailing purpose'' of U.S.
immigration law.\86\ This use of the Secretary's statutory parole
authority addresses a barrier that currently prevents many of these
otherwise eligible noncitizens from
[[Page 67466]]
obtaining LPR status and will also promote the long-term sense of
security and stability for these families.
---------------------------------------------------------------------------
\86\ Nwozuzu v. Holder, 726 F.3d 323, 332 (2d Cir. 2013) (citing
H.R. Rep. No. 82-1365 (1952), reprinted in 1952 U.S.C.C.A.N. at
1680); see also Holder v. Martinez Gutierrez, 566 U.S. 583, 594
(2012) (recognizing that the ``objectives of providing relief to
[noncitizens] with strong ties to the United States and promoting
family unity . . . underlie or inform many provisions of immigration
law,'' even if ``they are not the INA's only goals, and Congress did
not pursue them to the nth degree'') (quotation marks omitted)
(citing Fiallo v. Bell, 430 U.S. 787, 795 n.6 (1977), and INS v.
Errico, 385 U.S. 214, 220 (1966)).
---------------------------------------------------------------------------
This process will benefit an estimated 500,000 noncitizen spouses
and 50,000 noncitizen stepchildren.\87\ The noncitizen spouses eligible
for this process have lived in the United States for a median time
period of 23 years, illustrating the depth of their ties to the
country.\88\ More than 1.6 million U.S. citizen family members,
including 1.1 million U.S. citizen children, are estimated to live with
these noncitizen family members.\89\ Absent this process, for these
noncitizens to apply for permanent residence, their U.S. citizen
spouses and children might have to endure prolonged separation from
them, which would disrupt their lives, create instability, and result
in avoidable economic and emotional hardship. Without this process,
hundreds of thousands of noncitizen spouses of U.S. citizens are likely
to instead remain in the United States without lawful status, causing
these families to live in fear and with uncertainty about their
futures.\90\
---------------------------------------------------------------------------
\87\ OHSS Analysis, supra note 3, tbl. 3.
\88\ Id. tbl. 5.
\89\ Id. tbl. 4. While the total number of U.S. citizens living
in families with noncitizen spouses who lack lawful status is over
2.5 million, including over 1.6 million children, the subset of U.S.
citizens living with noncitizen spouses who lack lawful status, who
have lived in the country for 10 or more years, and who entered
without inspection is estimated to be 1.65 million, including an
estimated 1.1 million U.S. citizen children.
\90\ Edward Vargas & Vickie Ybarra, U.S. Citizen Children of
Undocumented Parents: The Link Between State Immigration Policy and
the Health of Latino Children, J. Immigr. Minor Health (Aug. 2017),
available at <a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5236009">https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5236009</a>.
The impact of this instability is particularly profound for children
in these families. See ``Preventing violence through the development
of safe, stable, and nurturing relationships between children and
their parents and caregivers,'' World Health Organization and Centre
for Public Health (2009), <a href="https://iris.who.int/bitstream/handle/10665/44088/9789241597821_eng.pdf">https://iris.who.int/bitstream/handle/10665/44088/9789241597821_eng.pdf</a>; Vincent J. Felitti et al.,
Relationship of Childhood Abuse and Household Dysfunction to Many of
the Leading Causes of Death in Adults: The Adverse Childhood
Experiences (ACE) Study, Am. J. Preventive Medicine 14 no. 4, 245-
258 (1998), <a href="https://www.ajpmonline.org/article/S0749-3797">https://www.ajpmonline.org/article/S0749-3797</a>(98)00017-
8/fulltext; A. Martinez, L. Ruelas, and D. Granger, Household fear
of deportation in Mexican-origin families: Relation to body mass
index percentiles and salivary uric acid, Am. J. Hum. Biol. 2017,
<a href="https://pubmed.ncbi.nlm.nih.gov/28726338/">https://pubmed.ncbi.nlm.nih.gov/28726338/</a>; L. Rojas-Flores, M.
Clements, J. Hwang Koo, and J. London, Trauma and psychological
distress in Latino citizen children following parental detention and
deportation, Psychol. Trauma 2017, <a href="https://pubmed.ncbi.nlm.nih.gov/27504961/">https://pubmed.ncbi.nlm.nih.gov/27504961/</a>.
---------------------------------------------------------------------------
In justifying the establishment of the parole in place process for
military families in partnership with the Department of Defense, USCIS
described how in the absence of such a process, service members faced
``stress and anxiety because of the immigration status of their family
members in the United States.'' \91\ Here, too, access to parole in
place will reduce the stress and anxiety of U.S. citizen spouses and
children by providing stability for these families in the short and
long term.
---------------------------------------------------------------------------
\91\ USCIS Military Parole in Place Memorandum, supra note 26.
---------------------------------------------------------------------------
Strengthening the U.S. Economy and the Economic Position of Families
and U.S. Communities
If parole in place is granted, the noncitizen will be immediately
eligible to apply for employment authorization for the duration of
their parole period, which will benefit both their U.S. citizen family
members and the broader U.S. economy. Additionally, this process will
provide these noncitizens the ability to work lawfully,\92\ which will
facilitate greater access to job mobility and improve overall economic
productivity; \93\ provide stable, consistent support to their U.S.
citizen family members; \94\ reduce their risk of facing labor
exploitation; \95\ and allow for these noncitizens to contribute their
full talents to the U.S. workforce.\96\
---------------------------------------------------------------------------
\92\ See 8 CFR 274a.12(c)(11). Noncitizens who apply for
adjustment of status to that of an LPR under INA sec. 245 may also
apply for and obtain employment authorization while their adjustment
application remains pending. See 8 CFR 274a.12(c)(9).
\93\ Cecilia Rouse, Lisa Barrow, Kevin Rinz, and Evan Soltas,
White House Council of Economic Advisers, Economic Benefits of
Extending Permanent Legal Status to Unauthorized Immigrants (Sept.
17, 2021), <a href="https://www.whitehouse.gov/cea/written-materials/2021/09/17/the-economic-benefits-of-extending-permanent-legalstatus-to-unauthorized-immigrants/">https://www.whitehouse.gov/cea/written-materials/2021/09/17/the-economic-benefits-of-extending-permanent-legalstatus-to-unauthorized-immigrants/</a> immigrants/.
\94\ Id.
\95\ Felipe Gonz[aacute]lez Morales, United Nations Special
Rapporteur on the Human Rights of Migrants, How to Expand and
Diversify Regularization Mechanisms and Programmes to Enhance the
Protection of the Human Rights of Migrants, at 3, U.N. Doc. A/
HRC.52/26 (Apr. 20, 2023).
\96\ See supra note 93.
---------------------------------------------------------------------------
Currently, an estimated 65 percent of noncitizens over the age of
16 who do not have lawful status are already participating in the U.S.
workforce, and many are self-employed.\97\ The noncitizen spouses of
U.S. citizens covered by this process generally lack access to
employment authorization and are therefore prevented from contributing
as fully to the economy as they otherwise could. Like other U.S.
families, U.S. citizen spouses, noncitizen spouses, and their families
pay taxes and stimulate the economy by consuming goods and services.
These activities contribute to further growth of the economy and create
additional jobs and opportunities for U.S. citizens.\98\ Providing
these noncitizens access to employment authorization could also
increase their labor force participation in a tight labor market, where
there are more jobs than workers.\99\
---------------------------------------------------------------------------
\97\ See Migration Policy Institute, ``Profile of the
Unauthorized Population: United States,'' available at <a href="https://www.migrationpolicy.org/data/unauthorized-immigrant-population/state/US">https://www.migrationpolicy.org/data/unauthorized-immigrant-population/state/US</a> (last visited June 16, 2024).
\98\ Cecilia Rouse, Lisa Barrow, Kevin Rinz, and Evan Soltas,
White House Council of Economic Advisers, Economic Benefits of
Extending Permanent Legal Status to Unauthorized Immigrants (Sept.
17, 2021) (describing the ways in which the presence of immigrants
helps stimulate the economy), available at <a href="https://www.whitehouse.gov/cea/written-materials/2021/09/17/the-economic-benefits-of-extending-permanent-legal-status-to-unauthorized-immigrants/">https://www.whitehouse.gov/cea/written-materials/2021/09/17/the-economic-benefits-of-extending-permanent-legal-status-to-unauthorized-immigrants/</a>.
\99\ Id.; see also U.S. Bureau of Labor Statistics, Number of
unemployed persons per job opening, seasonally adjusted, available
at <a href="https://www.bls.gov/charts/job-openings-and-labor-turnover/unemp-per-job-opening.htm#">https://www.bls.gov/charts/job-openings-and-labor-turnover/unemp-per-job-opening.htm#</a>.
---------------------------------------------------------------------------
U.S. citizen family members will also benefit from the stability
offered through this process. Absent this process, applying for LPR
status requires noncitizens who are present without admission or parole
(PWAP) to depart the United States and remain abroad for an indefinite
period, which is disruptive to the family's economic and emotional
wellbeing. By contrast, parole and the subsequent ability to apply for
LPR status from within the United States will enable these noncitizens
to consistently support and provide for their U.S. citizen family
members.
Access to employment authorization will also reduce potential labor
exploitation, furthering a DHS and government-wide interest.\100\
Research demonstrates that noncitizens who lack employment
authorization are more likely to experience violations of labor laws,
including laws governing workplace conditions and minimum wages.\101\
They are also less likely to report those violations to enforcement
agencies because of their unauthorized status.\102\ This allows
unscrupulous
[[Page 67467]]
employers to unfairly compete with those who hire U.S. workers.\103\
---------------------------------------------------------------------------
\100\ Memorandum from Alejandro Mayorkas, Secretary, U.S. Dep't
of Homeland Security, Worksite Enforcement: The Strategy to Protect
the American Labor Market, the Conditions of the American Worksite,
and the Dignity of the Individual (Oct. 12, 2021), available at
<a href="https://www.dhs.gov/publication/memorandum-worksite-enforcement">https://www.dhs.gov/publication/memorandum-worksite-enforcement</a>.
\101\ See, e.g., Annette Bernhardt, Ruth Milkman, and Nik
Theodor, National Employment Law Project, Broken Laws, Unprotected
Workers: Violations of Employment and Labor Laws in America's Cities
25, 42-45 (Sept. 21, 2009), available at <a href="https://www.nelp.org/insights-research/broken-laws-unprotected-workers-violations-of-employment-and-labor-laws-in-americas-cities/">https://www.nelp.org/insights-research/broken-laws-unprotected-workers-violations-of-employment-and-labor-laws-in-americas-cities/</a>.
\102\ See, e.g., Tsedeye Gebreselassie, Nayantara Mehta, and
Irene Tung, National Employment Law Project, How California Can Lead
on Retaliation Reforms to Dismantle Workplace Inequality 8 (Nov. 2,
2022), available at <a href="https://www.nelp.org/insights-research/how-california-can-lead-on-retaliation-reforms-to-dismantle-workplace-inequality/">https://www.nelp.org/insights-research/how-california-can-lead-on-retaliation-reforms-to-dismantle-workplace-inequality/</a> (noting that only 10 percent of respondents who
experienced labor violations reported those violations to a
government agency).
\103\ U.S. Dep't of Homeland Security, DHS Announces Process
Enhancements for Supporting Labor Enforcement Investigations (Jan.
13, 2023) (describing how deferred action protects undocumented
workers who may then come forward to participate in enforcement
agency investigations of potential violations of labor laws),
available at <a href="https://www.dhs.gov/news/2023/01/13/dhs-announces-process-enhancements-supporting-labor-enforcement-investigations">https://www.dhs.gov/news/2023/01/13/dhs-announces-process-enhancements-supporting-labor-enforcement-investigations</a>.
---------------------------------------------------------------------------
In addition, although undocumented noncitizens contribute billions
in Federal, State, and local taxes each year, regularizing the status
of this population has the potential to increase these tax
revenues.\104\ Noncitizens who lack employment authorization may file
taxes using an Individual Taxpayer Identification Number (ITIN). Past
estimates suggest that noncitizens filing with ITINs pay billions in
withheld payroll taxes annually.\105\ While a precise estimate of the
tax compliance rate among the undocumented population is unknown,
government agencies and nongovernmental organizations have previously
inferred that it may be between 50 to 75 percent. Providing access to
employment authorization for this population would increase tax
revenues by decreasing barriers to compliance with the tax code and
increasing the earning potential of these noncitizens.\106\
---------------------------------------------------------------------------
\104\ See, e.g., Carl Davis, Marco Guzman, and Emma Sifre,
Institute on Taxation and Economic Policy, Tax Payments by
Undocumented Immigrants (July 30, 2024), available at <a href="https://itep.org/undocumented-immigrants-taxes-2024">https://itep.org/undocumented-immigrants-taxes-2024</a>.
\105\ See, e.g., Nat'l Taxpayer Advocate, Annual Report to
Congress, Vol. 1, 199 (2015) (``In 2015, 4.4 million ITIN filers
paid over $5.5 billion in payroll and Medicare taxes and $23.6
billion in total taxes''), available at <a href="https://www.taxpayeradvocate.irs.gov/wp-content/uploads/2020/08/ARC15_Volume1.pdf">https://www.taxpayeradvocate.irs.gov/wp-content/uploads/2020/08/ARC15_Volume1.pdf</a>; Stephen Goss et al., Social Security
Administration, Office of the Chief Actuary, Actuarial Note No. 151,
Effects of Unauthorized Immigration on the Actuarial Status of the
Social Security Trust Funds (Apr. 2013) (``For the year 2010, we
estimate that the excess of tax revenue paid to the [Social
Security] Trust Funds over benefits paid from these funds based on
earnings of unauthorized workers is about $12 billion.''), available
at <a href="https://www.ssa.gov/oact/NOTES/pdf_notes/note151.pdf">https://www.ssa.gov/oact/NOTES/pdf_notes/note151.pdf</a>.
\106\ Rouse et al., supra note 93 (citing Elizabeth U. Cascio &
Ethan G. Lewis, Distributing the Green (Cards): Permanent Residency
and Personal Income Taxes after the Immigration Reform and Control
Act of 1986, 172 J. Pub. Econ. 135 (2019)); Davis et al., supra note
104.
---------------------------------------------------------------------------
The benefits of facilitating access to employment authorization for
this particular population far outweigh the potential costs to American
workers or to the U.S. economy. First, a review of economic studies
concludes that providing legal status to unauthorized noncitizens does
not harm U.S.-born and other workers in the longer term, as the impact
of immigration on wages overall is both limited and very small.\107\
Second, the impact on public benefits at both the State and Federal
level is expected to be minimal, at least initially, as these
noncitizens would be ineligible to access most means-tested benefits
for five years after being granted parole in place, as discussed in
detail in Section VII.C. of this notice.\108\ See additional discussion
of benefits related to the economy and labor market in Section VIII.A.
of this notice.
---------------------------------------------------------------------------
\107\ See, e.g., National Academies, The Economic and Fiscal
Consequences of Immigration (2017), available at <a href="https://www.nationalacademies.org/our-work/economic-and-fiscal-impact-of-immigration">https://www.nationalacademies.org/our-work/economic-and-fiscal-impact-of-immigration</a>.
\108\ USCIS, Appendix: Eligibility for Public Benefits
(describing limitations on when ``qualified aliens,'' including
parolees and LPRs, can access public benefits, typically after five
years), available at <a href="https://www.uscis.gov/sites/default/files/document/policy-manual-resources/Appendix-EligibilityforPublicBenefits.pdf">https://www.uscis.gov/sites/default/files/document/policy-manual-resources/Appendix-EligibilityforPublicBenefits.pdf</a>; see also 8 U.S.C. 1641(b)
(defining ``qualified alien''). Cuban and Haitian nationals who are
granted parole, however, are generally eligible for ``Cuban-Haitian
Entrant Program'' (CHEP) benefits. See Refugee Education Assistance
Act of 1980, Public Law 96-422, sec. 501 (8 U.S.C. 1522 note); 8 CFR
212.5(h); see also U.S. Dep't of Health and Human Services, Office
of Refugee Resettlement, Benefits for Cuban/Haitian Entrants (Fact
Sheet), available at <a href="https://www.acf.hhs.gov/orr/fact-sheet/benefits-cuban/haitian-entrants">https://www.acf.hhs.gov/orr/fact-sheet/benefits-cuban/haitian-entrants</a>. Eventually, with LPR status, these
parolees could potentially become eligible for other public
benefits, but their uptake of these public benefits would likely be
curtailed by their access to lawful employment and offset by the
increased taxes they would pay as formal contributors to the
economy. Rouse et al., supra note 93. However, as discussed
elsewhere in this section, DHS estimates that only 13 percent of
noncitizens likely to access this parole in place process are
nationals of Western Hemisphere countries other than Mexico,
Guatemala, Honduras, or El Salvador.
---------------------------------------------------------------------------
Advancing Diplomatic Relationships and Key Foreign Policy Objectives of
the United States
This process responds to the requests and interests of key foreign
partners and aligns with the U.S. government's broader foreign policy
objectives to collaboratively manage migration and promote economic
stability in countries throughout the Western Hemisphere.
The significant majority of noncitizens who stand to benefit from
this process are nationals of Western Hemisphere countries that serve
as key migration management partners of the United States. An estimated
64 percent of the noncitizens who are likely to access this process are
Mexican nationals, while 20 percent are from Guatemala, Honduras, and
El Salvador.\109\ An additional 13 percent are nationals of other
Western Hemisphere countries.\110\
---------------------------------------------------------------------------
\109\ OHSS Analysis, supra note 3, tbl. 3.
\110\ Id.
---------------------------------------------------------------------------
The United States continues to engage with partner countries in the
Western Hemisphere to manage extraordinary levels of migration. These
efforts include addressing the root causes of migration, expanding
access to lawful pathways, and disrupting human smuggling, trafficking,
and criminal networks that prey on the most vulnerable individuals. As
part of the strategy to reduce irregular migration and ensure migrants
have access to protection, services and employment, the United States
has worked with its partners to ensure migrants in other countries have
access to regularization programs.
For example, as part of a multilateral process involving 21
countries, in May 2024, Ecuador announced a new regularization program
under which certain migrants are able to obtain a temporary resident
permit, while others are able to apply for a temporary visa.\111\
Colombia has given 10-year temporary protected status to approximately
2.5 million Venezuelans,\112\ and announced a plan for parents and
legal guardians of children with such status to obtain special permits.
Colombia also announced a new special permanent visa for Latin American
and Caribbean migrants without regular status in the country.
Similarly, Costa Rica committed to expand its Special Temporary
Category regularization pathway and reduce barriers to access with
continued assistance from the international community.\113\
---------------------------------------------------------------------------
\111\ The White House, Fact Sheet: Third Ministerial Meeting on
the Los Angeles Declaration on Migration and Protection in Guatemala
(May 7, 2024) (``White House Fact Sheet''), available at <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2024/05/07/fact-sheet-third-ministerial-meeting-on-the-los-angeles-declarationon-migration-and-protection-in-guatemala/">https://www.whitehouse.gov/briefing-room/statements-releases/2024/05/07/fact-sheet-third-ministerial-meeting-on-the-los-angeles-declarationon-migration-and-protection-in-guatemala/</a>.
\112\ See U.S. Dep't of State, Secretary Antony J. Blinken and
Secretary of Homeland Security Alejandro Mayorkas at a Joint Press
Availability (Apr. 27, 2023), available at <a href="https://www.state.gov/secretary-antony-j-blinken-and-secretary-of-homeland-security-alejandro-mayorkas-at-a-joint-press-availability">https://www.state.gov/secretary-antony-j-blinken-and-secretary-of-homeland-security-alejandro-mayorkas-at-a-joint-press-availability</a>.
\113\ White House Fact Sheet, supra note 111.
---------------------------------------------------------------------------
This parole in place process demonstrates U.S. partnership and
commitment to the shared goals of addressing migration through the
Western Hemisphere. Partner countries have requested regularization of
their respective nationals who have lived in the United States for long
periods of time without lawful status.\114\ For
[[Page 67468]]
example, the Government of Mexico has urged the United States to
regularize Mexican nationals who are long-term residents of the United
States.\115\ Further, the Government of Colombia has requested that the
United States regularize certain Colombian nationals living in the
United States. Both Mexico and Colombia have partnered closely with the
United States to address irregular migration.\116\ This parole in place
process will therefore strengthen the United States' ability to
cooperate and engage with these and other key partners in the region.
This cooperation and engagement extends to matters of national and
border security as well.
---------------------------------------------------------------------------
\114\ The White House, Mexico-U.S. Joint Communique: Mexico and
the United States Reaffirm Their Shared Commitments on an Orderly,
Humane and Regular Migration (Dec. 28, 2023), available at <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2023/12/28/mexico-u-s-joint-communique-mexico-and-the-united-states-reaffirm-their-shared-commitments-on-an-orderly-humane-and-regular-migration/">https://www.whitehouse.gov/briefing-room/statements-releases/2023/12/28/mexico-u-s-joint-communique-mexico-and-the-united-states-reaffirm-their-shared-commitments-on-an-orderly-humane-and-regular-migration/</a>.
\115\ See, e.g., Government of Mexico, En di[aacute]logo con su
hom[oacute]logo estadounidense, presidente L[oacute]pez Obrador
ratifica propuesta en materia migratoria (In Dialogue with His
American Counterpart, President L[oacute]pez Obrador Ratifies
Proposal on Immigration Matters) (Feb. 3, 2024), available at
<a href="https://www.gob.mx/presidencia/prensa/en-dialogo-con-su-homologo-estadounidense-presidente-lopez-obrador-ratifica-propuesta-en-materia-migratoria">https://www.gob.mx/presidencia/prensa/en-dialogo-con-su-homologo-estadounidense-presidente-lopez-obrador-ratifica-propuesta-en-materia-migratoria</a>.
\116\ See, e.g., Department of State, U.S.-Colombia Joint
Commitment to Address the Hemispheric Challenge of Irregular
Migration (June 4, 2023), available at <a href="https://www.state.gov/u-s-colombia-joint-commitment-to-address-the-hemispheric-challenge-of-irregular-migration/">https://www.state.gov/u-s-colombia-joint-commitment-to-address-the-hemispheric-challenge-of-irregular-migration/</a>; see also Department of State, U.S. Relations
with Mexico (Sept. 13, 2023), available at <a href="https://www.state.gov/u-s-relations-with-mexico/">https://www.state.gov/u-s-relations-with-mexico/</a>.
---------------------------------------------------------------------------
This process will also further the key foreign policy objectives of
increasing economic stability in countries that are major sources of
migration to the United States. By providing certain noncitizen long-
term residents of the United States the ability to access employment
authorization and adjustment of status, this process will enhance their
ability to send remittances to family members in their countries of
origin, promoting stability and reducing incentives for those family
members or others to irregularly migrate to the United States.\117\
Remittances play a pivotal role in origin countries' economies in the
Western Hemisphere. In 2023, remittances received by the countries of
Latin America and the Caribbean reached $154 billion.\118\ Remittances
are crucial to low- and middle-income countries, as they can improve a
country's ability to repay debt and national banks can use future
inflows as collateral to lower the costs of international
borrowing.\119\
---------------------------------------------------------------------------
\117\ See, e.g., Jose Ivan Rodriguez-Sanchez, An Economic
Lifeline? How Remittances from the U.S. Impact Mexico's Economy,
Baker Institute of Rice University (Nov. 13, 2023), available at
<a href="https://www.bakerinstitute.org/research/economic-lifeline-how-remittances-us-impact-mexicos-economy">https://www.bakerinstitute.org/research/economic-lifeline-how-remittances-us-impact-mexicos-economy</a>.
\118\ Jeremy Harris and Ren[eacute] Maldonado, Migrant wages and
remittances to Latin America and the Caribbean in 2023, Migration
Unpacked, Inter-American Development Bank (May 15, 2024), available
at <a href="https://blogs.iadb.org/migracion/en/migrant-wages-and-remittances-to-latin-america-and-the-caribbean-in-2023/">https://blogs.iadb.org/migracion/en/migrant-wages-and-remittances-to-latin-america-and-the-caribbean-in-2023/</a>.
\119\ See id.
---------------------------------------------------------------------------
Reducing Strain on Limited U.S. Government Resources
The process will also provide the significant public benefit of
preserving and more effectively using limited U.S. government resources
for DHS (including USCIS and ICE), DOS, and DOJ (EOIR). USCIS
anticipates that this process will ultimately reduce pressure on the
overlapping, lengthier, and more complex Form I-601A, Application for
Provisional Unlawful Presence Waiver, workload.\120\
---------------------------------------------------------------------------
\120\ Certain immigrant visa applicants may use Form I-601A to
request a provisional waiver of the unlawful presence grounds of
inadmissibility under INA section 212 (a)(9)(B) before departing the
United States to appear at a U.S. Embassy or Consulate for an
immigrant visa interview. 8 CFR 212.7(e)(3).
---------------------------------------------------------------------------
As of the third quarter of FY 2024, nearly 124,000 Forms I-601A
were pending adjudication, and the median processing time to adjudicate
a Form I-601A was 41.7 months. Of these pending applications,
approximately 44,000, or 35 percent, were filed by noncitizens who have
been in the United States for 10 years or more and are married to a
U.S. citizen. While increased resources have allowed USCIS to complete
more Form I-601A adjudications in FY 2024 year-to-date than in all of
FY 2023, the backlog has only been reduced by 5,000 since the start of
FY 2024. Although USCIS will carefully consider parole in place
requests under this process on a case-by-case basis, USCIS expects that
these adjudications will require fewer resources than those required to
adjudicate the Form I-601A, given the nature of the adjudication. For
example, requestors for this parole in place process will be required
to file online, allowing for a more efficient adjudication, while the
Form I-601A can only be filed on paper through the mail. USCIS has
leveraged many of the efficiencies \121\ developed for the online Form
I-131 in the development of Form I-131F, which will be both filed and
adjudicated electronically. Furthermore, as described elsewhere in this
notice, the Form I-601A is a more complex adjudication involving the
determination of various factors, including whether the noncitizen has
met their burden to show they would be inadmissible only under INA
section 212(a)(9)(B)(i) at the time of their consular interview, and
whether they have demonstrated extreme hardship to a qualifying
relative as required under INA section 212(a)(9)(B)(v), issues that are
inherently more difficult to assess in comparison to a discretionary
parole request.
---------------------------------------------------------------------------
\121\ Every submission completed online rather than through
paper provides cost savings and operational efficiencies to both
USCIS and its customers. USCIS scans some applications, petitions,
and requests received on paper so that they can be processed
electronically. USCIS offers recommendations to avoid delays when
filing paper; if more documents were filed electronically, it would
reduce the time spent on scanning paper documents and free up more
time for adjudication rather than administrative tasks. See U.S.
Citizenship and Immigration Services Fee Schedule and Changes to
Certain Other Immigration Benefit Request Requirements, 89 FR 6194
(Jan. 31, 2024).
---------------------------------------------------------------------------
USCIS also anticipates that a significant number of noncitizens who
may have otherwise filed Form I-601A as a step towards obtaining lawful
permanent residence will instead pursue a parole in place request under
this process. If future I-601A workloads are reduced, USCIS will be
better able to focus on reducing the I-601A backlog, while assuming
fewer new I-601A filings.
Although USCIS created a new Form I-131F to support this process,
and USCIS will assume a new workload by accepting these parole in place
requests, it will offset this new workload by charging a filing fee of
$580 as it generally does for parole requests filed online.\122\ Thus,
USCIS anticipates it will recover the costs associated with this new
workload through the fees collected.
---------------------------------------------------------------------------
\122\ See 8 CFR 106.2(a)(7); 106.1(g).
---------------------------------------------------------------------------
Because this process may result in fewer noncitizens filing Forms
I-601A and pursuing immigrant visa applications at U.S. embassies or
consulates, the parole in place process is also expected to reduce
strain on DOS. Consular processing of an immigrant visa application
after USCIS approves a Form I-601A involves significant DOS resources.
The provisional unlawful presence waiver does not take effect until the
applicant departs the United States, appears for an immigrant visa
interview at a U.S. embassy or consulate, and is determined by a
consular officer to be otherwise eligible for an immigrant visa in
light of the approved provisional waiver.\123\ If the consular officer
finds that the noncitizen is inadmissible based on a ground other than
INA section 212(a)(9)(B)(i), 8 U.S.C. 1182(a)(9)(B)(i), the provisional
unlawful presence waiver is automatically revoked, and the noncitizen
must seek a waiver of inadmissibility for all waivable grounds of
inadmissibility through filing a Form I-601, Application for Waiver of
[[Page 67469]]
Grounds of Inadmissibility.\124\ In such cases, the noncitizen must
await USCIS adjudication of the Form I-601, which has a median
processing time of 20.5 months. This revocation followed by a new
adjudication adds to the DOS workload and reduces interview
availability for other visa applicants. The parole in place process may
thus help decrease future wait times for other noncitizens who have a
visa number and are waiting for a visa interview at a U.S. embassy or
consulate. Despite considerable efforts, some U.S. consular sections
are still working to reduce backlogs caused by the COVID-19
pandemic.\125\ As of June 2024, DOS's National Visa Center (NVC) had
394,836 individuals awaiting an immigrant visa interview; on average,
the NVC can schedule 48,898 applicants for interviews each month.\126\
If, as anticipated, more noncitizens pursue adjustment of status
instead of consular processing, DOS could save consular interview
appointments for other immigrant and nonimmigrant visa categories.
While this would result in an increase in USCIS' adjustment of status
workload, those filings will be accompanied by the required fee; USCIS
believes that on net, implementation of the parole in place process
will result in saving government resources compared to the status quo.
---------------------------------------------------------------------------
\123\ 8 CFR 212.7(e)(12)(i).
\124\ 8 CFR 212.7(e)(14).
\125\ U.S. Dep't of State, Immigrant Visa Interview-Ready
Backlog Report (July 2024), available at <a href="https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/visas-backlog.html">https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/visas-backlog.html</a>.
\126\ Id.
---------------------------------------------------------------------------
The parole in place process also may save resources for ICE and the
Department of Justice (DOJ) Executive Office for Immigration Review
(EOIR) if, as a result of being granted parole in place and pursuing
adjustment of status, fewer members of this population are placed in or
remain in removal proceedings. Additionally, noncitizens who meet the
criteria and are not priorities for enforcement may request to be
considered for parole in place under this process, despite currently
being in removal proceedings. If granted parole in place, they may seek
to have their removal proceedings terminated or dismissed \127\ and
apply to adjust their status.\128\ In the currently overburdened
immigration court system, cases that are terminated or dismissed free
up court time and permit immigration judges and ICE OPLA attorneys to
focus on priority cases.
---------------------------------------------------------------------------
\127\ A grant of parole in place pursuant to this process does
not automatically result in removal proceedings before DOJ EOIR
being terminated or dismissed. Generally, a party to the removal
proceedings (either the noncitizen or ICE) must move for termination
or dismissal of removal proceedings. DOJ EOIR (either an immigration
judge or the Board of Immigration Appeals) will evaluate and issue a
decision on the motion for termination or dismissal under applicable
standards. See, e.g., 8 CFR 1003.1(m), 1239.2(b); 8 CFR 1003.18(d).
\128\ If removal proceedings are not terminated or dismissed,
the immigration judge generally retains exclusive jurisdiction to
adjudicate any application for adjustment of status. 8 CFR
1245.2(a)(1) (providing that in ``the case of any [noncitizen] who
has been placed in . . . removal proceedings (other than as an
arriving alien), the immigration judge . . . has exclusive
jurisdiction to adjudicate any application for adjustment of
status''); see also 8 CFR 1245.2(a)(1)(ii) (describing exceptions
for certain ``arriving aliens''); 8 CFR 245.2(a)(1) (providing that
USCIS ``has jurisdiction to adjudicate an application for adjustment
of status filed by any [noncitizen], unless the immigration judge
has jurisdiction to adjudicate the application'').
---------------------------------------------------------------------------
Furthering National Security, Public Safety, and Border Security
Objectives
This process will promote national security, public safety, and
border security by requiring noncitizens who choose to request parole
in place under this process to submit biometric and biographic
information to DHS and undergo background and security checks. The
information collected through this process will be used to thoroughly
vet every requestor and may identify and disqualify individuals who
pose a national security, public safety, or border security
threat.\129\ DHS has also determined that the criteria outlined in this
notice--such as the requirements that the requestor have 10 years of
continuous physical presence in the United States and that the marriage
to a U.S. citizen must have occurred on or before June 17, 2024--
promote process integrity, prevent potential fraud, and provide greater
certainty about the scope of the potential population.
---------------------------------------------------------------------------
\129\ As discussed further in Section V.A. of this notice, there
is an exception for border security concerns for stepchildren who
otherwise meet the criteria for parole in place under this process.
---------------------------------------------------------------------------
Further, noncitizens granted parole may be more willing to report
crimes because they will be less fearful that interacting with law
enforcement will result in an immigration enforcement action.\130\ One
study found that 59 percent of Deferred Action for Childhood Arrivals
(DACA) recipients would report a crime that they would not have
reported before receiving DACA.\131\ In that same study, two-thirds of
respondents said they were less afraid of law enforcement after
receiving DACA.\132\ Additionally, studies have shown that when
vulnerable communities feel safer reporting crimes, law enforcement can
create more comprehensive strategies to effectively target
perpetrators.\133\
---------------------------------------------------------------------------
\130\ See, e.g., Stefano Comino et al., Silence of the
Innocents: Undocumented Immigrants' Underreporting of Crime and
their Victimization, 39 J. of Pol'y Analysis, 1214, 1215 (2020)
(``Undocumented victims' reporting rate is less than half the size
of documented ones.'').
\131\ See Roberto G. Gonzales, Here's How DACA Changed the Lives
of Young Immigrants, According to Research, Vox (Feb. 16, 2018),
available at <a href="https://www.vox.com/2017/9/2/16244380/daca-benefits-trump-undocumented-immigrants-jobs">https://www.vox.com/2017/9/2/16244380/daca-benefits-trump-undocumented-immigrants-jobs</a>. Similar to deferred action,
however, parole may be revoked at any time and does not constitute a
right against enforcement action.
\132\ Id.
\133\ See, e.g., Stacey Ivie & Natalie Nanasi, The U Visa: An
Effective Resource for Law Enforcement, 78 FBI Law Enforcement
Bulletin 10, 10-16 (Oct. 2009).
---------------------------------------------------------------------------
V. Eligibility
A. Criteria
To be considered for a discretionary grant of parole in place under
this process, a requestor who is the noncitizen spouse of a U.S.
citizen must meet the following criteria:
<bullet> Be present in the United States without admission or
parole;
<bullet> 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;
<bullet> Have a legally valid marriage to a U.S. citizen on or
before June 17, 2024;
<bullet> Have no disqualifying criminal history; and
<bullet> 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.
To be considered for a discretionary grant of parole in place under
this process, a requestor who is the stepchild of a U.S. citizen must
meet the following criteria:
<bullet> Be present in the United States without admission or
parole;
<bullet> 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;
<bullet> Have been continuously physically present in the United
States since at least June 17, 2024 through the date of filing;
<bullet> Have no disqualifying criminal history; and
<bullet> Submit biometrics, undergo required background checks and
national security and public safety vetting, and be found not to pose a
threat to national security or public safety.
The burden is on the requestor to demonstrate by a preponderance of
the evidence that they meet the criteria outlined in this notice, and
that parole
[[Page 67470]]
is warranted as a matter of discretion for urgent humanitarian reasons
or significant public benefit. Meeting the requirements for parole in
place under this process does not establish eligibility for other
immigration benefits, including LPR status.
Present in the United States Without Admission or Parole
A requestor must be present in the United States without admission
or parole. Noncitizens who were last admitted with a valid nonimmigrant
visa but have remained in the United States beyond the period of stay
authorized are not eligible for parole in place.\134\
---------------------------------------------------------------------------
\134\ Noncitizens who are immediate relatives of a U.S. citizen
and had a valid nonimmigrant visa but have remained in the United
States beyond the period of stay authorized were admitted and
paroled may be eligible to apply for adjustment of status without
seeking parole in place. See INA sec. 245(a), 8 U.S.C. 1255(a).
---------------------------------------------------------------------------
Continuous Physical Presence Since June 17, 2014
Noncitizen spouses of U.S. citizens requesting parole in place
under this process must 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. Requestors should provide
documentation to account for as much of the period as reasonably
possible, but there is no requirement that every day or month of that
period be specifically accounted for through direct evidence.\135\
USCIS will evaluate the totality of the evidence to determine whether
the requestor has established by a preponderance of the evidence
continuous physical presence for the required period of time.
---------------------------------------------------------------------------
\135\ See section VI.B. of this notice for a list of documents
that may be provided to establish continuous physical presence.
---------------------------------------------------------------------------
Marriage to a U.S. Citizen
To be eligible for parole in place as the noncitizen spouse of a
U.S. citizen, the requestor must have entered into a valid marriage to
a U.S. citizen on or before June 17, 2024, and be married on the date
of filing the parole in place request (with an exception for widows and
widowers as discussed below). USCIS will generally recognize a marriage
as valid for purposes of this parole in place process if it is legally
valid in the place where the marriage was celebrated.\136\ This
includes termination of any prior marriage. Although States and foreign
countries may have specific laws governing jurisdiction, the place of
celebration is generally where the ceremony took place or where the
officiant of the ceremony was located and where the marriage
certificate was issued.\137\ Even if a marriage is valid in the place
of celebration, there are circumstances where USCIS may not recognize a
marriage as valid for purposes of this process, consistent with
existing case law and policies for family-based immigrant visa
petitions and other benefits.\138\
---------------------------------------------------------------------------
\136\ See Matter of Hosseinian, 19 I. & N. Dec. 453, 455 (BIA
1987) (``the validity of a marriage for immigration purposes is
generally governed by the law of the place of celebration of the
marriage''); Matter of Rodriguez-Cruz, 18 I. & N. Dec. 72, 73 (BIA
1981) (citing Matter of P-, 4 I. & N. Dec. 610, 613-14 (A.G. 1952)
(observing that in the absence of a legislative definition of
marriage for immigration purposes, ``the generally accepted rule is
that the validity of a marriage is governed by the law of the place
of celebration'')).
\137\ See 8 CFR 204.2(a)(2) (requiring certificate of marriage
issued by civil authorities).
\138\ See Adjudicator's Field Manual, Chapter 21, Family-based
Petitions and Applications available at <a href="https://www.uscis.gov/sites/default/files/document/policy-manual-afm/afm21-external.pdf">https://www.uscis.gov/sites/default/files/document/policy-manual-afm/afm21-external.pdf</a>; see
also USCIS Policy Manual Volume 12, Part G, Spouses of U.S.
Citizens, Chapter 2, Marriage and Marital Union for Naturalization,
Section A, Validity of Marriage [12 USCIS-PM G.2(A)], available at
<a href="https://www.uscis.gov/policy-manual/volume-12-part-g-chapter-2">https://www.uscis.gov/policy-manual/volume-12-part-g-chapter-2</a> (last
updated June 28, 2024).
---------------------------------------------------------------------------
Consistent with the INA and case law, examples of the types of
marital relationships that USCIS generally will not recognize for
purposes of this process include, but are not limited to:
<bullet> Civil unions, domestic partnerships, or other
relationships that do not confer the same legal rights and
responsibilities to the parties as in a marriage recognized by a civil
authority;
<bullet> Marriages that are contrary to public policy in the United
States; \139\ and
---------------------------------------------------------------------------
\139\ This includes polygamous marriages and marriages involving
minors, or marriages involving close relatives. See Matter of
Manjoukis, 13 I. & N. Dec. 705 (BIA 1971) (14 year old not able to
enter into legally valid marriage as it would be void under state
law); Matter of H-, 9 I. & N. Dec. 640 (BIA 1962) (a polygamous
marriage, though valid where contracted, is not recognized for
immigration purposes); see also INA sec. 101(a)(35), 8 U.S.C.
1101(a)(35); Matter of Lovo-Lara, 23 I. & N. Dec. 746, 752 n.3 (BIA
2005); Matter of B-, 5 I. & N. Dec. 698 (BIA 1954).
---------------------------------------------------------------------------
<bullet> Marriages where one or both parties to the marriage are
not legally free to marry or have not given consent to the
marriage.\140\
---------------------------------------------------------------------------
\140\ USCIS does not recognize marriages that violate strong
Federal public policy, see Matter of H-, 9 I. & N. Dec. 640 (BIA
1962), and there is a strong Federal policy against marriages to
which one or both parties do not consent. The Violence Against Women
Act Reauthorization Act of 2022 added a definition of forced
marriage (``a marriage to which 1 or both parties do not or cannot
consent, and in which 1 or more elements of force, fraud, or
coercion is present''), and provided for grants for victims'
services and legal assistance for victims of forced marriage. See 34
U.S.C. 12291(a)(16).
---------------------------------------------------------------------------
A noncitizen may be eligible for parole in place if their U.S.
citizen spouse is deceased, as long as a legally valid marriage was
entered into on or before June 17, 2024. However, there are additional
requirements separate from the parole in place process that the
noncitizen must meet to be eligible for adjustment of status. A
noncitizen widow(er) must have a pending or approved Form I-130 filed
on their behalf at the time of the U.S. citizen spouse's death or must
file a Form I-360, Petition for Amerasian, Widow(er), or Special
Immigrant, within two years from the date of the U.S. citizen spouse's
death. The noncitizen must not have been legally separated from the
U.S. citizen spouse at the time of the U.S. citizen spouse's death and
must not have since remarried.\141\
---------------------------------------------------------------------------
\141\ See INA sec. 201(b)(2)(A)(i), 8 U.S.C. 1151(b)(2)(A)(i).
---------------------------------------------------------------------------
Noncitizen Stepchildren of U.S. Citizens
Noncitizen children of a noncitizen married to a U.S. citizen may
be considered for parole in place under this process. For a child to
qualify as the stepchild of a U.S. citizen, the child must have been
under age 18 at the time of the marriage that created the stepparent-
stepchild relationship and must have been unmarried and under the age
of 21 \142\ as of June 17, 2024.\143\
---------------------------------------------------------------------------
\142\ An immediate relative child's age is frozen at the time
their Form I-130 or Form I-360 is filed in order to protect them
from aging out before being able to adjust status. See INA sec.
201(f), 8 U.S.C. 1151(f).
\143\ See INA sec. 101(b)(1)(B), 8 U.S.C. 1101(b)(1)(B).
---------------------------------------------------------------------------
The stepchild does not need to demonstrate continuous physical
presence since June 17, 2014. However, they must have been continuously
physically present in the United States since at least June 17, 2024,
through the date of filing.\144\ In addition, the stepchild's
noncitizen parent must have entered into a legally valid marriage with
a U.S. citizen on or before June 17, 2024.
---------------------------------------------------------------------------
\144\ See Section VI.B. of this notice for a list of documents
that may be provided to establish continuous physical presence.
---------------------------------------------------------------------------
If the marriage between the noncitizen parent and U.S. citizen
spouse is terminated, either through divorce or death of one or both
parents, the stepchild may still be eligible for parole in place if a
valid marriage was entered into on or before June 17, 2024, and the
stepchild meets the above criteria.\145\ An
[[Page 67471]]
eligible stepchild may file on their own with their birth certificate
and evidence of their parents' valid marriage without the participation
of either parent.
---------------------------------------------------------------------------
\145\ For the stepchild to be eligible for an immigrant visa
petition or adjustment of status, additional requirements must be
met, including that a bona fide relationship exists between the
stepchild and U.S. citizen stepparent and, if applicable,
eligibility for certain surviving relative benefits. See Matter of
Pagnerre, 13 I. & N. Dec. 173 (BIA 1971) (when marriage is
terminated by death but there was a continuing relationship
thereafter between petitioner and beneficiary, petitioner is
regarded as the stepparent of beneficiary for immigration purposes
and petition); Matter of Mowrer, 17 I. & N. Dec. 613 (BIA 1981)
(where the parents have legally separated or where the marriage has
been terminated by divorce or death, the appropriate inquiry is
whether a family relationship has continued to exist as a matter of
fact between the stepparent and stepchild); see also INA secs.
201(b)(2)(A)(i) and 204(l), 8 U.S.C. 1151(b)(2)(A)(i), 1154(l)
(describing additional requirements with respect to benefits for
certain surviving relatives); 8 CFR 204.2(b) (same).
---------------------------------------------------------------------------
Lack of Criminal History, National Security Concerns, Public Safety
Concerns, or Border Security Concerns
Requestors must not have a disqualifying criminal history or
otherwise constitute a threat to national security, public safety, or
border security.\146\ All pending criminal charges are disqualifying,
regardless of the nature of the charges. A noncitizen may apply for
parole in place once those charges are resolved.
---------------------------------------------------------------------------
\146\ Indicators of national security concerns include, but are
not limited to, participation in activities that threaten the United
States or gang membership. Indicators of public safety concerns
include, but are not limited to, serious criminal conduct or
criminal history. Indicators of border security concerns include
recent apprehension while attempting to enter the U.S. unlawfully or
apprehension following unlawful entry after November 1, 2020;
however, there is an exception for border security concerns for
stepchildren who otherwise meet the criteria for parole in place
under this process.
---------------------------------------------------------------------------
All felony convictions, including felony driving under the
influence (DUI) offenses, are disqualifying. Additionally,
disqualifying criminal history includes convictions for the following
offenses, regardless of whether the offense is classified as a
felony.\147\
---------------------------------------------------------------------------
\147\ These categories of convictions also generally overlap
with inadmissibility grounds for purposes of adjustment of status.
See INA sec. 212(a), 8 U.S.C. 1182(a). DHS reserves its discretion
to determine that other offenses are disqualifying, even if not
listed.
---------------------------------------------------------------------------
<bullet> Murder, torture, rape, or sexual abuse;
<bullet> Offenses involving firearms, explosive materials, or
destructive devices;
<bullet> Offenses relating to peonage, slavery, involuntary
servitude, and trafficking in persons;
<bullet> Aggravated assault;
<bullet> Offenses relating to child pornography, sexual abuse or
exploitation of minors, or solicitation of minors;
<bullet> Domestic violence, stalking, child abuse, child neglect,
or child abandonment; and
<bullet> Controlled substance offenses (other than simple
possession of 30 grams or less of marijuana).\148\
---------------------------------------------------------------------------
\148\ Noncitizens who were under the age of 18 but convicted of
a felony or a disqualifying misdemeanor are considered to have
disqualifying criminal history and are not eligible for this
process.
---------------------------------------------------------------------------
All other criminal convictions,\149\ excluding minor traffic
offenses, will result in a rebuttable presumption of ineligibility for
parole in place. This presumption can be rebutted on a case-by-case
basis by weighing the seriousness of the conviction against mitigating
factors relating to the conviction as well as other positive factors
that suggest that the noncitizen merits a favorable exercise of
discretion. The weight of the rebuttable presumption will be guided by
the seriousness of the conviction.\150\ A less serious conviction, or a
conviction that does not raise public safety concerns, will result in a
presumption that carries less weight and can be more easily rebutted.
In adjudicating parole in place requests on an individualized, case-by-
case basis, the nature and seriousness of the conviction will determine
the evidence needed to overcome it. Factors that can be considered in
overcoming the presumption may include, for example:
---------------------------------------------------------------------------
\149\ Although not generally considered convictions for
immigration purposes, USCIS will nonetheless consider juvenile
delinquency adjudications as resulting in a presumption of
ineligibility. However, the presumption may be overcome by factors
such as the nature of the underlying offense, requestor's age at the
time of the commission of the underlying offense, the length of time
that has passed since the adjudication, the sentence or penalty
imposed, evidence of rehabilitation, and any other relevant
information.
\150\ Arrests or criminal charges that do not result in a
conviction, such as where a requestor had been arrested but no
charges were lodged, or a requestor had been arrested with charges
lodged that were later dismissed, does not result in a presumption
of ineligibility.
---------------------------------------------------------------------------
<bullet> Age of the conviction(s) (remoteness in time);
<bullet> Requestor's age at the time of the offense and conviction,
including whether the requestor was a juvenile at the time of the
offense;
<bullet> Sentence or penalty imposed;
<bullet> Evidence of subsequent rehabilitation;
<bullet> Nature of the conviction, including whether the conduct at
issue was non-violent;
<bullet> 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);
<bullet> Existence of a mental or physical condition that may have
contributed to the criminal conduct;
<bullet> Requestor's particular vulnerability, including any
physical or mental condition requiring treatment or care in the United
States;
<bullet> Requestor's status as a victim of or witness to criminal
activity, including domestic violence, or civil rights violation or
labor rights violation under investigation by a labor agency,
particularly if related to the criminal conduct at issue;
<bullet> Requestor's status, or that of their U.S. citizen spouse,
as a current or former member of the U.S. military;
<bullet> Requestor's status as the primary caregiver for a U.S.
citizen child or elderly parent or in-law;
<bullet> Evidence of requestor's good character, such as property
ties, business ties, or value and service to the community;
<bullet> Length of requestor's presence in the United States;
<bullet> Requestor's status as a caregiver for an individual with
disabilities, including U.S. citizen in-laws or siblings;
<bullet> Impact on other family members, including family members
who are U.S. citizens and LPRs or
<bullet> Other factors USCIS considers relevant in its exercise of
discretion.
B. Requestors with Unexecuted Final Removal Orders or Currently in
Section 240 Proceedings
Requestors With Unexecuted Final Removal Orders
Noncitizens with unexecuted final removal orders \151\ will be
presumptively ineligible for parole in place under this process.
However, DHS will evaluate, in the exercise of its discretion on a
case-by-case basis, the facts and circumstances underlying the
unexecuted final removal order in determining whether the noncitizen
may overcome the presumption of ineligibility and be granted parole.
Examples of information that may be relevant to DHS in its
determination of whether the requestor has overcome the presumption of
ineligibility include, but are not limited to:\152\
---------------------------------------------------------------------------
\151\ Presumptive ineligibility applies to any removal order
issued under INA 240, 8 U.S.C. 1229a, INA 235(b)(1), 8 U.S.C.
1225(b)(1), or any other provision of law. A final removal order
under INA 240, 8 U.S.C. 1229a, is defined at INA 101(a)(47), 8
U.S.C. 1101(a)(47), and 8 CFR 1241.1.
\152\ These examples solely concern DHS's determination
regarding whether the presumption of ineligibility for parole in
place has been overcome; they are distinct from any standards
considered by DOJ EOIR in the context of a motion to reopen.
---------------------------------------------------------------------------
[[Page 67472]]
<bullet> Lack of proper notice;
<bullet> Age of the noncitizen at the time the removal order was
issued;
<bullet> Ineffective assistance of counsel or being a victim of
fraud in connection with immigration representation; or
<bullet> Other extenuating factors or considerations such as:
[cir] Inability to understand proceedings because of language
barriers;
[cir] Status as a victim of domestic violence;
[cir] Other extenuating personal factors, such as requestor's
limited resources (e.g., lack of housing that would have impacted
ability to appear);
<bullet> A physical or mental condition requiring care or treatment
during immigration proceedings.\153\
---------------------------------------------------------------------------
\153\ A decision by USCIS to grant parole in place to a
requestor with an unexecuted removal order does not rescind, cancel,
vacate, or otherwise remove the existence of the unexecuted removal
order. DOJ EOIR has sole jurisdiction over the decision to reopen
removal proceedings under INA section 240, 8 U.S.C. 1229a, see INA
sec. 240(c)(7), 8 U.S.C. 1229a(c)(7); such reopening vacates any
final removal order issued under INA section 240, 8 U.S.C. 1229a,
see Nken v. Holder, 556 U.S. 418, 429 n.1 (2009). An unexecuted
removal order issued by DOJ EOIR under INA section 240, 8 U.S.C.
1229a, remains in existence, notwithstanding a grant of parole in
place, unless and until the INA section 240 proceedings are reopened
by an immigration judge or the BIA. Unexecuted removal orders issued
by DHS (such as an order of expedited removal under INA section
235(b)(1), 8 U.S.C. 1225(b)(1), or an administrative order of
removal under INA section 238(b), 8 U.S.C. 1228(b)), likewise remain
in existence unless and until they are vacated, canceled, or
rescinded by the relevant issuing authority within DHS in that
agency's sole discretion.
---------------------------------------------------------------------------
Requestors in Section 240 Removal Proceedings
Eligible noncitizens who are currently in removal proceedings under
INA section 240, including those who have been released under INA
section 236(a) on bond or their own recognizance, and those without a
final removal order, may submit a request to be considered for parole
in place on a case-by-case basis, taking into account the totality of
the circumstances, under this process.\154\ Note, however, that a
noncitizen who constitutes a national security, public safety, or
border security concern is ineligible for parole under this
process.\155\ Further, this process does not preclude DHS from, in its
discretionary authority, taking enforcement actions as deemed
appropriate.
---------------------------------------------------------------------------
\154\ This includes those with a pending appeal to the BIA, as
their removal order would not be administratively final pending
resolution of the appeal.
\155\ See, e.g., September 2021 Guidelines, supra note 81. As
noted in the September 2021 Guidelines, noncitizens present border
security concerns if they were apprehended while attempting to enter
the U.S. unlawfully or if they entered unlawfully after November 1,
2020. There is an exception to this for stepchildren who otherwise
meet the criteria for parole in place under this process.
---------------------------------------------------------------------------
C. Factors Considered
As discussed in this notice, DHS's decision whether to grant parole
in place to a requestor is a discretionary, case-by-case determination.
Even if a requestor establishes that they have met all of the criteria
for eligibility, USCIS will examine the totality of the circumstances
in the individual case to determine whether the requestor merits a
grant of parole in place as a matter of discretion for significant
public benefit or urgent humanitarian reasons. In doing so, USCIS will
weigh the positive factors against the negative factors that are
present in the record. Requestors may provide evidence of positive
factors to establish that they merit a favorable exercise of
discretion, which may relate to, but are not limited to:
<bullet> Community ties;
<bullet> Advanced or young age;
<bullet> Length of presence in the United States;
<bullet> Status as a parent or caregiver of a U.S. citizen child or
elderly parent or in-law;
<bullet> Status as a caregiver for an individual with disabilities,
including U.S. citizen in-laws or siblings;
<bullet> Physical or mental condition requiring care or treatment
in the United States;
<bullet> Status as a victim of or witness to a crime or civil
rights violation, or labor rights violation under investigation by a
labor agency;
<bullet> Impact on other family members, including family members
who are U.S. citizens and LPRs;
<bullet> Status, or that of their U.S. citizen spouse, as a current
or former member of the U.S. military; or
<bullet> Other positive factors about which the requestor wishes to
provide information.
This is a non-exhaustive list of factors; USCIS may consider any
relevant fact in the discretionary analysis.
VI. Filing Requirements and Processing Steps
A. Form
Requestors seeking parole in place as the spouse or stepchild of a
U.S. citizen must submit Form I-131F, Application for Parole in Place
for Certain Noncitizen Spouses and Stepchildren of U.S. Citizens,
online with the appropriate fee. To submit Form I-131F, requestors must
both complete the required form fields and submit the required evidence
establishing eligibility.
B. Documentation
Requestors must submit the required evidence establishing
eligibility, in compliance with Form I-131F instructions. Required
documentation for noncitizen spouse requestors includes the following:
<bullet> Proof of identity, which may include:
[cir] Valid State or country driver's license or identification;
[cir] Birth certificate with photo identification;
[cir] Valid passport; or
[cir] Any government issued document bearing the requestor's name,
date of birth, and photo.\156\
---------------------------------------------------------------------------
\156\ Expired documents may be provided in conjunction with
other documents.
---------------------------------------------------------------------------
<bullet> Evidence establishing their continuous physical presence
since at least June 17, 2014, which may include, but is not limited to:
[cir] Internal Revenue Service (IRS) tax transcripts listing tax
information;
[cir] Rent receipts or utility bills;
[cir] Deeds, mortgage statements, or rental contracts;
[cir] Bank, credit card, or loan statements showing regular
transactions;
[cir] Insurance policies;
[cir] Automobile license receipts, title, or registration;
[cir] Hospital or medical records;
[cir] School records (letters, report cards, etc.);
[cir] Attestations to the requestor's physical presence by
religious entities, unions, or other civic or community organizations;
[cir] Official records from a religious entity confirming the
requestor's participation in a religious ceremony;
[cir] Birth certificates for children born in the United States;
[cir] Money order receipts for money sent into or out of the United
States; or
[cir] Any other document that shows that the requestor maintained
continuous physical presence in the United States for the requisite
time period.
<bullet> Evidence establishing a valid marriage between the
noncitizen spouse and U.S. citizen:
[cir] Current marriage certificate showing a legally valid marriage
took place on or before June 17, 2024;
[cir] Any divorce decree, annulment decree, or death certificate
showing that the noncitizen spouse's and their U.S. citizen spouse's
prior marriages were terminated (if applicable); and
[cir] Death certificate of U.S. citizen spouse (if applicable).
<bullet> Proof of the U.S. citizenship status of the spouse/
stepparent, which must include one of the following:
[[Page 67473]]
[cir] The spouse's/stepparent's U.S. birth certificate (if the
spouse has held U.S. citizenship since birth);
[cir] The spouse's/stepparent's Certificate of Naturalization;
[cir] The spouse's/stepparent's Certificate of Citizenship;
[cir] The spouse's/stepparent's Form FS-240, Consular Report of
Birth Abroad; or
[cir] The biographical page of the spouse's/stepparent's current
U.S. passport.
<bullet> Arrest records and court dispositions of any arrests,
charges, and convictions (if applicable).
Required documentation for noncitizen stepchild requestors includes
the following:
<bullet> The birth certificate of the stepchild listing the name of
the noncitizen parent as a natural parent;
<bullet> Proof of identity (as listed above);
<bullet> Evidence establishing their continuous physical presence
since June 17, 2024 (as listed above);
<bullet> Evidence establishing a legally valid marriage between the
noncitizen stepchild's noncitizen parent and the noncitizen stepchild's
U.S. citizen stepparent took place on or before June 17, 2024 (as
listed above);
<bullet> Proof of the U.S. citizenship status of the spouse/
stepparent (as listed above);
<bullet> Arrest records and court dispositions of any arrests,
charges, and convictions (if applicable).
C. Processing Steps
This parole in place process will be implemented in accordance with
the lessons learned from similar processes, while building on
technological advances and efficiencies in USCIS processing.
Filing Procedure
Each requestor must submit Form I-131F with the applicable filing
fee, as listed on Form G-1055, Fee Schedule (currently $580). Fee
waivers are not available, and requests must be submitted online. For
information on creating a USCIS online account, visit <a href="http://www.uscis.gov/file-online/how-to-create-a-uscis-online-account">www.uscis.gov/file-online/how-to-create-a-uscis-online-account</a>. Each requestor,
including noncitizen stepchild requestors, must file a separate Form I-
131F and pay the fee individually.
Biometrics Submission
After the requestor files Form I-131F, they will be required to
provide biometrics to USCIS, including fingerprints, photographs, and a
signature. The requestor's biometric information will be used to
conduct background checks, including checks for criminal history
records, verify identity, determine eligibility for requested benefits,
create immigration documents (e.g., Employment Authorization
Documents), or for any other purpose authorized by the INA.\157\ After
the requestor files the Form I-131F online, USCIS will notify the
noncitizen in writing of the time and location for a biometric services
appointment. Failure to appear for biometrics submission may result in
a denial of the parole in place request.
---------------------------------------------------------------------------
\157\ As authorized by the INA, biometric information collected
in this process may be used by other DHS components. See also 8 CFR
103.16. See also discussion on information use and disclosure in
this notice.
---------------------------------------------------------------------------
Case-by-Case Consideration for Parole
Noncitizens who meet the criteria listed in this notice may be
considered for a discretionary grant of parole on a case-by-case basis.
USCIS may grant parole in place to the requestor if USCIS determines
that there is a significant public benefit or urgent humanitarian
reason for parole and that the requestor merits a favorable exercise of
discretion in the totality of the circumstances.
USCIS may prioritize the adjudication of Form I-131F for
noncitizens who previously filed a Form I-601A. In establishing this
parole in place process, DHS considered that certain noncitizens
eligible for the parole in place process will have already prepared,
filed, and paid a filing fee for a Form I-601A. USCIS has determined
that prioritizing the adjudication of Forms I-131F filed by these
noncitizens is justified in recognition that they availed themselves of
existing processes to pursue an immigrant visa but may nonetheless wish
to pursue parole in place to avoid the costs and potential separation
or disruption to their family that consular processing entails.
Additionally, prioritizing this population may have the downstream
effect of reducing the adjudicatory resources needed for pending Forms
I-601A as noncitizens who are granted parole in place through this
process may subsequently apply, and be approved, for adjustment of
status to that of an LPR.
Upon a grant of parole in place, the noncitizen will receive a Form
I-797, Notice of Action, and a Form I-94, Arrival/Departure Record.
Parole Period
If granted parole in place on a case-by-case basis in the exercise
of discretion, parole will generally be granted for a period of up to
three years. Parole may be terminated at any time upon notice at DHS's
discretion pursuant to 8 CFR 212.5(e)(2)(i). DHS does not contemplate a
re-parole process at this time.
In addition, USCIS, in its sole discretion, may impose conditions
on a grant of parole with respect to any noncitizen under this process,
and it may request verification of the noncitizen's compliance with any
such condition at any time.\158\ Violation of any condition of parole
may lead to termination of the parole in accordance with 8 CFR
212.5(e).
---------------------------------------------------------------------------
\158\ See INA sec. 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A).
---------------------------------------------------------------------------
Employment Authorization
If parole in place is granted, the parolee will be eligible to
request an Employment Authorization Document (EAD) pursuant to 8 CFR
274a.12(c)(11), as recipients of parole under INA section 212(d)(5), 8
U.S.C. 1182(d)(5). An individual seeking employment authorization as a
parolee (category (c)(11)) may request a waiver of the Form I-765,
Application for Employment Authorization, fee by submitting Form I-912,
Request for Fee Waiver along with the Form I-765.
Subsequent Form I-130 or Form I-485
A grant of parole in place does not establish eligibility for an
immigrant visa petition or a presumption that the marriage is bona fide
for purposes of an immigrant visa petition or other immigration
benefits. Following a grant of parole to a noncitizen, the U.S. citizen
spouse or stepparent of the noncitizen is encouraged to file a Form I-
130, or, in the case of certain widow(er)s, the noncitizen may file
Form I-360, concurrently with the Form I-485 if they have not filed a
standalone Form I-130 or Form I-360 already. For purposes of Form I-130
based on marriage, a petitioner must demonstrate that they entered into
a bona fide marriage with the beneficiary, and for a Form I-130 for a
stepchild, the petitioner must demonstrate they entered into a bona
fide marriage to the beneficiary's noncitizen parent. There are
additional requirements for Form I-360 for certain widow(er)s and their
children, including filing deadlines, residence requirements, and
marital status requirements.\159\ A stepchild may remain eligible for
an immigrant visa despite their parent's marriage to a U.S. citizen
being terminated through death of either parent or divorce, so long as
a bona fide stepparent-stepchild relationship continued to exist
following the death or divorce.
---------------------------------------------------------------------------
\159\ See INA secs. 201(b)(2)(A)(i), 204(l), 8 U.S.C.
1151(b)(2)(A)(i), 8 U.S.C. 1154(l).
---------------------------------------------------------------------------
[[Page 67474]]
Further, a discretionary grant of parole does not in itself
establish eligibility for adjustment of status to that of an LPR under
INA section 245(a), 8 U.S.C. 1255(a). As discussed elsewhere in this
notice, a grant of parole would satisfy the requirement under INA
section 245(a), 8 U.S.C. 1255(a), that the applicant has been inspected
and admitted or paroled by an immigration officer. The noncitizen,
however, must satisfy all other requirements for adjustment of status,
including establishing that they are not inadmissible under any
applicable grounds.\160\ As noted, if the noncitizen is granted parole
in place, the noncitizen and their spouse or stepparent would need to
file Form I-130 (if not previously filed) and Form I-485.\161\
---------------------------------------------------------------------------
\160\ Furthermore, by avoiding the need to depart the United
States to seek an immigrant visa at a U.S. embassy or consulate, the
noncitizen would not trigger the inadmissibility grounds at INA sec.
212(a)(9)(B), 8 U.S.C. 1182(a)(9)(B), by seeking admission after
such departure.
\161\ Additionally, there may be instances where the noncitizen
would also have to file the Form I-601, Application for Waiver of
Grounds of Inadmissibility.
---------------------------------------------------------------------------
Information Use and Disclosure
DHS generally will not use information contained in a request for
parole in place under this process for the purpose of initiating
immigration enforcement action against the requestor unless DHS
determines, in its discretion, the requestor poses a threat to national
security, public safety, or border security.\162\ This process does not
preclude DHS from, in its discretionary authority, taking enforcement
actions as deemed appropriate, in accordance with the INA and
consistent with governing policies and practices, against noncitizens
who may be eligible or who have pending applications for parole under
this process. Information provided under this process may be otherwise
disclosed consistent with statutory authorities, obligations, and
restrictions, as well as governing privacy and information-sharing
policies.
---------------------------------------------------------------------------
\162\ See, e.g., September 2021 Guidelines, supra note 81.
---------------------------------------------------------------------------
D. Termination and No Private Rights
As provided under INA section 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A),
parole decisions are made by the Secretary ``in his discretion.'' This
process is being implemented as a matter of the Secretary's discretion,
and the Secretary retains the sole discretion to terminate parole in
place under this process at any point. It is not intended to, shall not
be construed to, may not be relied upon to, and does not create any
rights, privileges, benefits, substantive or procedural, enforceable by
any party in any matter, civil or criminal, against the United States,
its departments, agencies, or other entities, its officers or
employees, or any other person.
VII. Considerations in the Establishment of This Parole in Place
Process
In establishing this process, DHS considered various alternatives,
as well as the impacts on resources and processing and the broader
impacts on both the Federal government and State and local governments.
A. Alternatives to This Process
In exercising the Secretary's discretionary parole authority to
establish a parole in place process, DHS considered various
alternatives to the process.
First, DHS considered whether it could instead dedicate additional
resources to the processing of pending Forms I-601A. As discussed
elsewhere in this notice, the provisional unlawful presence waiver
process allows certain noncitizens, including spouses of U.S. citizens,
to obtain a provisional unlawful presence waiver prior to their
departure from the United States to pursue an immigrant visa at a U.S.
embassy or consulate abroad. It is intended to reduce the time
noncitizens must spend apart from their U.S. citizen family members
while increasing certainty that they will be granted a waiver of the
inadmissibility ground that is triggered once they depart.\163\
However, the provisional unlawful presence waiver process still entails
some period of families being separated because it requires consular
processing abroad after approval of the Form I-601A, often at great
financial cost. It also involves some level of uncertainty and risk.
The grant of a provisional waiver is not a guarantee that the waiver of
inadmissibility or the immigrant visa, will ultimately be granted.\164\
Likewise, a grant of parole in place does not guarantee that an
application for adjustment of status will be approved, but because the
application process takes place while the applicant is in the United
States, noncitizens may be more likely to pursue this option. For some
families, even a short-term separation from a family member, whose
income or other household contributions are needed, may be untenable.
---------------------------------------------------------------------------
\163\ See 78 FR 536 (Jan. 6, 2013).
\164\ See 8 CFR 212.7(e)(12)(i) (noting the conditions that must
be satisfied for the provisional unlawful presence waiver to take
effect).
---------------------------------------------------------------------------
Moreover, even if, as an alternative to this process, USCIS
dedicated additional resources to provisional waiver processing, doing
so would not provide the previously noted significant public benefit of
this process. As described in Section IV of this notice, this process
furthers diplomatic relationships and foreign policy objectives. It
also sets out a streamlined and less resource intensive adjudication,
as compared to the more complex and resource intensive provisional
waiver process which involves determining if the applicant has met
their burden of proving they would be inadmissible only for unlawful
presence upon departure, and that they have demonstrated extreme
hardship to a qualifying relative.\165\ Although USCIS has
significantly increased resources devoted to the Form I-601A backlog
relative to previous years, the backlog of pending applications will
still take at least three years to be meaningfully reduced.
Accordingly, although USCIS considered dedicating even more resources
to Form I-601A processing, it concluded that doing so would not
effectively address the backlog in the near term or support timely
adjudications of other workloads as compared to the processing
efficiencies gained through implementation of this parole in place
process.
---------------------------------------------------------------------------
\165\ 8 CFR 212.7(e).
---------------------------------------------------------------------------
USCIS anticipates that its adjudication of parole requests under
this process will be less resource-intensive than the adjudication of
Form I-601A applications, given process efficiencies that USCIS has
identified in adjudicating parole requests in other parole processes,
and considering the complexity and resources required for the I-601A
adjudication. And unlike the provisional waiver process, parole in
place will not entail a period of separation from U.S. citizen family
members or, alternatively, require U.S. citizen family members to
depart the United States with the noncitizen. Additionally, it will
obviate the need for consular processing, thereby diverting noncitizens
with parole in place from DOS backlogs and reducing wait times for
other noncitizens seeking visas at U.S. consulates.
While the Form I-601A process will remain critical for other
categories of immigrant visa applicants who are not eligible for this
process, parole in place offers a less onerous path for a subset of the
I-601A-eligible population who have lived in the United States for at
least 10 years, are married to U.S. citizens or are the noncitizen
[[Page 67475]]
stepchildren of U.S. citizens, have no disqualifying factors, and merit
a favorable exercise of discretion.
DHS acknowledges that there will be an increase in filings of Form
I-765, as well as an increase in Form I-130 and Form I-485 filings but
notes that these forms have associated filing fees that cover the cost
of adjudication, and USCIS has implemented streamlined processing for
certain categories of employment authorization documents, and other
immigration benefit requests, including those filed by parolees. In
considering all the factors, DHS determined that the benefits of
implementing this process, as discussed in Section IV of this notice,
outweigh any additional workload assumed by USCIS.
Second, DHS has considered alternative approaches in designing this
process. Specifically, in proposing parameters for this process, DHS
considered the following alternatives:
<bullet> Length of requisite physical presence: DHS considered the
time period by which a requestor would likely have established deep
ties to their communities in the United States in determining the
period of continuous physical presence required to access this process.
In making this determination, DHS considered whether a longer period
(such as 15 years) or a shorter period (such as five or eight years)
was more appropriate and considered estimates of the potential
population for each of these time periods. Because Congress has
articulated a 10-year length of continuous presence as a prerequisite
for certain non-LPR noncitizens to seek lawful permanent residence
through a separate process known as cancellation of removal,\166\ DHS
concluded that 10 years would be an appropriate length of time to
require noncitizens to have been present in the United States to access
this process.
---------------------------------------------------------------------------
\166\ See INA sec. 240A(b)(1)(A), 8 U.S.C. 1229b(b)(1)(A).
---------------------------------------------------------------------------
DHS also considered whether the noncitizen could continue to accrue
the required 10 years of continuous physical presence until the time a
parole request is filed, or whether the noncitizen must have accrued
the 10 years by the time the process was announced. DHS determined that
requiring continuous physical presence to have accrued by a certain
date provides greater predictability and certainty about the scope of
the potential population, which in turn will assist DHS in determining
the appropriate resources to dedicate to this process. Requiring 10
years of continuous physical presence by June 17, 2024 for noncitizen
spouses of U.S. citizens also provides clarity to the public and avoids
unintentionally incentivizing any irregular migration by noncitizens
who might otherwise seek to enter the United States to access this
process.
<bullet> Marriage to a U.S. citizen: In requiring noncitizen
spouses of U.S. citizens to have a legally valid marriage on or before
June 17, 2024, DHS considered whether marriages that took place after
this date could nevertheless be qualifying. DHS determined that
requiring marriages to have taken place by June 17, 2024 would better
promote process integrity, prevent potential fraud, and provide greater
certainty about the scope of the potential population.
DHS also considered whether marriage to an LPR could be a
qualifying factor and determined against it because a primary goal of
establishing this proposed process is to remove a barrier to an
immigration benefit that may otherwise be immediately available to the
noncitizen. When a noncitizen marries a U.S. citizen, they qualify as
an ``immediate relative'' under the INA and are able to immediately
apply for LPR status (i.e., without needing to wait for an immigrant
visa to become available).\167\ Noncitizen spouses of LPRs who lack
lawful status do not qualify as ``immediate relatives'' and therefore
do not have an immediate path to adjustment of status (even if granted
parole) because they must wait for an immigrant visa to become
available before they can apply for LPR status. They also are subject
to other ineligibility provisions barring adjustment of status that are
not applicable to spouses of U.S. citizens.\168\
---------------------------------------------------------------------------
\167\ See INA sec. 201(b)(2)(A)(i), 8 U.S.C. 1151(b)(2)(A)(i); 8
CFR 204.1(a)(1).
\168\ See, e.g., INA sec. 245(c)(2), 8 U.S.C. 1255(c)(2).
---------------------------------------------------------------------------
DHS considered whether the marriage must be of a specified duration
(e.g., two years) at the time of the parole in place request,
particularly to address potential concerns about marriage fraud and
integrity of this process. The fixed date by which the marriage must
have taken place (June 17, 2024), eliminates any concern that
individuals may marry solely to take advantage of this process.
Moreover, USCIS will further assess the validity of the marriage for
immigration purposes, including a thorough review of the bona fides of
the marriage, during its consideration of the Form I-130 and Form I-
485. In its consideration of these forms, USCIS will employ its
standard, rigorous procedures to detect potential marriage fraud,
further ensuring that fraudulent marriages will not serve as the basis
for a grant of adjustment of status following access to this parole in
place process. Finally, USCIS can grant adjustment of status to
conditional lawful permanent residents on the basis of marriage to a
U.S. citizen when the marriage is less than two years in length.
Therefore, DHS determined that this process will not require that the
marriage be of a specified length, though DHS requires that the
marriage be legally valid in the place of celebration as of June 17,
2024.
DHS also decided to include widow(er)s who entered into a legally
valid marriage with a U.S. citizen prior to June 17, 2024. DHS believes
that including this population furthers the goals of the process
because widow(er)s of U.S. citizens may continue to be eligible for
immigrant visa petition approval and to apply to adjust status if
certain requirements are met. DHS also notes that including this
population is consistent with the process for family members of
military service members, in which the widow(er) of a deceased U.S.
citizen service member is eligible for parole in place. To be eligible
for immigrant visa petition approval and be eligible to apply to adjust
status, the widow(er) must have a Form I-130 filed on their behalf at
the time of the U.S. citizen's death or file a Form I-360 within two
years of the U.S. citizen's death. The widow(er) must also be unmarried
when their immigrant visa petition is adjudicated. A widow(er)'s
children may also be eligible for immigrant visa petition approval and
to adjust status as the derivative child of the widow(er). For these
reasons, DHS determined that, based on continued eligibility to apply
for an immigration benefit and adjustment of status, spouses and
stepchildren of deceased U.S. citizens could qualify for this parole
process if they demonstrate the additional qualifying criteria at the
time of filing an immigrant visa petition.
<bullet> Stepchildren of a U.S. citizen: Noncitizens who are
granted parole under this process may have children in the United
States who lack lawful status and who are unable to adjust their status
without facing the same barriers that their noncitizen parents would
encounter in the absence of a parole in place grant under this process.
DHS determined that providing these noncitizen stepchildren access
to this process is necessary to fully meet its objective of promoting
the unity and stability of families in which a U.S. citizen is married
to a noncitizen who lacks lawful status. DHS estimates that 50,000
noncitizen children of
[[Page 67476]]
noncitizen spouses who are married to U.S. citizens may be eligible to
request consideration under this process. However, DHS is requiring
that the noncitizen stepchild have been continuously physically present
in the United States without admission or parole since at least June
17, 2024, and through the date of filing, since children may be under
the age of 10 or otherwise unable to meet the 10 years required for
noncitizen spouses of U.S. citizens. Additionally, as with the physical
presence requirement for spouses, requiring physical presence in the
United States as of a date prior to announcing this process avoids
unintentionally incentivizing any irregular migration by noncitizens
who might otherwise seek to enter the United States to access this
process.
DHS also considered limiting this parole in place process to
children whose noncitizen parent was also requesting parole. DHS
determined that noncitizen stepchildren of a U.S. citizen may apply for
an immigrant visa petition separately even if the noncitizen parent
does not have an immigrant visa or status, and therefore should not be
excluded from this process. A qualifying noncitizen stepchild of a U.S.
citizen may be eligible as a beneficiary of Form I-130 based on their
relationship with the U.S. citizen stepparent. This is the case even if
the parents divorced or the noncitizen parent died. As such, DHS
determined that noncitizen stepchildren who would otherwise be eligible
as a beneficiary of Form I-130 based on a stepparent-stepchild
relationship, notwithstanding divorce of the parents or death of the
noncitizen parent, should also be eligible to request parole in place
under this process.
<bullet> Criminal history and threats to national security, public
safety or border security: DHS determined that noncitizens with serious
criminal convictions will be ineligible for parole under this
process.\169\ DHS also determined that other criminal convictions
(other than minor traffic offenses) will result in a presumption of
ineligibility for parole. This presumption can be rebutted on a case-
by-case basis by weighing the seriousness of the conviction against
positive factors that overcome the presumption.\170\ Additionally, all
requestors will undergo rigorous national security and public safety
vetting as part of this process. Those individuals who pose a threat to
national security, public safety or border security \171\ will be
disqualified from this process and, where appropriate, will be referred
to law enforcement. In making these determinations, DHS considered that
certain criminal convictions were likely to render a noncitizen
statutorily ineligible for adjustment of status, and decided that those
criminal convictions that are disqualifying for this process would
generally overlap with the statutory inadmissibility grounds. In
addition, DHS determined that noncitizens with pending criminal charges
will be ineligible for parole in place under this process until those
charges are resolved.
---------------------------------------------------------------------------
\169\ See Section V.A. of this notice for the full list of
disqualifying criminal convictions.
\170\ See id. for a list of factors USCIS may consider in
determining whether the requestor has overcome the presumption.
\171\ There is an exception for border security concerns for
stepchildren who otherwise meet the criteria for parole in place
under this process.
---------------------------------------------------------------------------
<bullet> Parole period length: DHS determined that a three-year
grant of parole was most appropriate for this process, though it
considered both shorter and longer periods of time. Other processes,
such as the family reunification parole processes, provide for up to a
three-year grant of parole.
After being granted parole in place, the noncitizen will generally
be eligible to apply to adjust their status if they have an approved
Form I-130 or their Form I-485 is accompanied by a Form I-130. The
benefits of parole (including lawful presence and employment
authorization) will remain in effect for the period of parole.
Currently, the median processing time for an immediate relative Form I-
130, when filed separately from a Form I-485, is 11.4 months, for Form
I-360 (all categories) is 3.2 months, and the median processing time
for a family-based Form I-485, when filed separately from a Form I-130,
is 9.4 months.\172\ Concurrent filing of these two forms is permitted
for noncitizen spouses of U.S. citizens. Assuming that noncitizens
would need time to compile evidence for these applications, save the
necessary funds to pay fees, and file these applications, a three-year
grant of parole will provide an appropriate amount of time to obtain
adjustment of status following the grant of parole in place based on
median USCIS processing times. A shorter timeframe would likely be
insufficient to cover the time needed to prepare and file the
adjustment application, while a longer timeframe would risk
disincentivizing parolees from timely applying for adjustment of
status.
---------------------------------------------------------------------------
\172\ See Historical National Median Processing Time (in Months)
for All USCIS Offices for Select Forms by Fiscal Year, available at
<a href="https://egov.uscis.gov/processing-times/historic-pt">https://egov.uscis.gov/processing-times/historic-pt</a>.
---------------------------------------------------------------------------
In making this determination, DHS considered that parole in place
is granted for certain military family members for a one-year period,
which currently is subject to subsequent periods of parole in one-year
increments, and is also fee exempt. Additionally, military parole in
place is available for a broader category of relatives: spouses,
widow(er)s, parents, and sons and daughters of U.S. citizen or LPR
military members and veterans, whereas this process is open only to
certain noncitizen spouses and stepchildren of U.S. citizens who may
have an immediate path to adjustment of status. However, in more recent
parole processes, DHS has found that a longer parole period is more
efficient for the public and the agency as it reduces the need for
recipients to seek re-parole.\173\ A three-year parole period was
therefore determined to be appropriate for certain noncitizen spouses
and stepchildren of U.S. citizens to ensure that they have sufficient
time to obtain adjustment of status during their parole period,
especially given that re-parole for requestors granted parole under
this process is not contemplated at this time.
---------------------------------------------------------------------------
\173\ See, e.g., Implementation of a Family Reunification Parole
Process for Colombians, 88 FR 43591 (July 10, 2023); Implementation
of a Family Reunification Parole Process for Ecuadorians, 88 FR
78762 (Nov. 16, 2023); Implementation of a Family Reunification
Parole Process for Salvadorans, 88 FR 43611 (July 10, 2023);
Implementation of a Family Reunification Parole Process for
Guatemalans, 88 FR 43581 (July 10, 2023); Implementation of a Family
Reunification Parole Process for Hondurans, 88 FR 43601 (July 10,
2023); Implementation of Changes to the Cuban Family Reunification
Parole Process, 88 FR 54639 (Aug. 11, 2023); Implementation of
Changes to the Haitian Family Reunification Parole Process, 88 FR
54635 (Aug. 11, 2023).
---------------------------------------------------------------------------
<bullet> Removal proceedings: DHS considered whether and how a
parole in place process should be available to noncitizens in pending
removal proceedings under INA section 240, 8 U.S.C. 1229a. Given that
some noncitizens in removal proceedings may be eligible to adjust
status if granted parole, USCIS will consider requests for otherwise
eligible noncitizens in pending removal proceedings who do not have a
final order of removal. This includes those who have been released on
bond or their own recognizance under INA section 236(a), 8 U.S.C.
1226(a), provided they remain applicants for admission. USCIS will
coordinate with ICE OPLA as it deems appropriate. A noncitizen who is
considered a national security, public safety or border security
concern will be generally disqualified from receiving
[[Page 67477]]
parole in place pursuant to this process. However, given the overall
objective to preserve family unity, there is an exception for border
security concerns for stepchildren who were placed into proceedings
after November 1, 2020, who otherwise meet the criteria for parole in
place under this process. In such cases, USCIS will consider any
extenuating or mitigating factors, including family unity, age at the
time of placement in proceedings, or other factors that USCIS considers
relevant in the exercise of discretion. The exception for border
security for certain noncitizen stepchildren of a U.S. citizen is
consistent with the eligibility requirement for this process as stated
in section V.A. of this preamble (explaining that noncitizen
stepchildren may request parole in place under this process), the
requirement for continuous physical presence in the United States only
covers June 17, 2024 through the date of filing.
<bullet> Prior removal orders: DHS considered whether noncitizens
with unexecuted final removal orders should be eligible for this
process. DHS determined that noncitizens with unexecuted final removal
orders will be presumptively ineligible for parole under this process.
DHS recognizes that a noncitizen may have grounds to request that an
immigration judge or the BIA reopen their immigration proceedings when
they are otherwise eligible for adjustment of status, and thus
determined that categorical ineligibility for this parole process would
be inappropriate. As a result, DHS will evaluate, in the exercise of
its discretion on a case-by-case basis, the facts and circumstances
underlying the unexecuted final removal order and all other mitigating
factors presented in determining whether the noncitizen may overcome
the rebuttable presumption of ineligibility and be granted parole in
place.\174\
---------------------------------------------------------------------------
\174\ See Section V.A. of this notice for a list of examples of
information that may be relevant to DHS in its determination as to
whether the requestor has overcome the presumption of ineligibility.
---------------------------------------------------------------------------
DHS acknowledges that granting parole in place to requestors with
unexecuted removal orders could increase the volume of motions to
reopen removal proceedings that EOIR will receive, and which ICE OPLA
will review and respond to, as appropriate. DHS believes that a
rebuttable presumption of ineligibility, and consideration of the
factors listed in Section V.B. of this notice strike an appropriate
balance to providing access to parole in place under this process to
noncitizens who may have grounds to support the granting of parole in
place. If granted parole in place, noncitizens who are prima facie
eligible for adjustment of status may independently pursue reopening
and dismissal of their case before EOIR to permit the filing of an
adjustment of status application before USCIS.
<bullet> Form I-130: DHS considered whether the noncitizen should
be required to have an approved Form I-130 prior to being granted
parole in place under this process, given that it is a prerequisite for
access to the FRP processes. However, DHS anticipates that many
noncitizens who will benefit from this process may not yet have filed a
Form I-130 because they are currently ineligible to adjust status and
may not wish to pursue consular processing given the prospect of
prolonged separation from their U.S. citizen family members. Requiring
a previously approved Form I-130 could disqualify a significant portion
of this population from this process and would be less effective in
achieving the significant public benefits described in this notice,
including of stabilizing and unifying families and enabling these
noncitizens to contribute more fully to the U.S. economy. Moreover,
immediate relatives who have been paroled are eligible to file their
Form I-130 concurrently with their Form I-485. Requiring that a
noncitizen file a Form I-130--either alone, or concurrently with a Form
I-485--to request parole in place under this process would create
significant inefficiencies and run counter to DHS' goal of reducing
strain on limited government resources.
<bullet> Form I-134: DHS considered whether the noncitizen should
be required to file Form I-134, Declaration of Financial Support, which
USCIS uses in certain circumstances to determine whether applicants or
beneficiaries of certain immigration benefit requests have sufficient
financial resources or financial support to pay for expenses during
their temporary stay in the United States.\175\ However, DHS declined
to include a requirement for submission of Form I-134 for this parole
in place process. USCIS has not generally required Form I-134 for
parole in place requests. For the existing military parole in place
process, noncitizen family members of U.S. military service members who
are granted parole in place are required to file Form I-864, Affidavit
of Support Under INA Section 213A when they file for adjustment of
status. Form I-864A is executed by a sponsor as evidence that the
noncitizen has adequate means of financial support and are not likely
at any time to become a public charge under INA section 212(a)(4)(A), 8
U.S.C 1182(a)(4)(A). Similarly, following a grant of parole in place
through this process, noncitizen spouses and noncitizen stepchildren
are expected to apply to adjust status, at which time they too will be
required to submit a Form I-864. Once adjustment of status is granted,
the sponsorship obligations associated with the Form I-864 remain in
effect until, for example, the noncitizen naturalizes or is credited
with 40 quarters of work.\176\
---------------------------------------------------------------------------
\175\ DOS also requests applicants or beneficiaries of certain
immigration benefit requests submit Form I-134 in certain
circumstances.
\176\ See 8 CFR 213a.3(e)(2)(i).
---------------------------------------------------------------------------
DHS has, therefore, determined that requiring a noncitizen to
submit a Form I-134 as part of their parole in place request when
shortly thereafter, they will be required to submit a Form I-864 with
their adjustment of status application, is unnecessarily duplicative
and adds an extra burden on requestors. Moreover, requiring USCIS
officers to adjudicate similar but unrelated evidence related to
financial support would create inefficiencies that run counter to DHS's
goals of reducing strain on limited government resources and
facilitating access to adjustment of status through this process.
<bullet> Inadmissibility: DHS additionally considered requiring the
requestor to demonstrate that they are not inadmissible under any
ground set forth in INA section 212(a), 8 U.S.C. 1182(a), to be granted
parole under this process. This parole in place process is meant for
those requestors who are otherwise eligible to adjust status. As noted
elsewhere in this notice, serious criminal convictions, including
certain convictions that would render the requestor inadmissible and
therefore ineligible for adjustment of status, will be disqualifying
for this process; other criminal convictions, as well as prior,
unexecuted removal orders, will trigger a rebuttable presumption of
ineligibility for this process. However, detailed consideration of
grounds of inadmissibility--including whether applicable grounds can be
waived--is a complex analysis undertaken during the Form I-485
adjustment of status adjudication. Requiring parole in place
adjudicators to conduct the inadmissibility analysis that is normally
conducted at the adjustment of status stage would be an inefficient,
duplicative, and costly use of USCIS resources. Therefore, when
assessing eligibility for parole in place, while DHS will consider the
requestor's criminal and immigration history and any other
[[Page 67478]]
adverse factors that could bear upon admissibility, it will not import
the admissibility analysis conducted at the Form I-485 stage into the
parole adjudication.
As discussed elsewhere in this notice, a grant of parole in place
would satisfy the requirement under INA section 245(a), 8 U.S.C.
1255(a), that the adjustment applicant has been ``inspected and
admitted or paroled'' by an immigration officer. This process is meant
for requestors who are otherwise eligible for adjustment of status and
who merit a favorable exercise of discretion; the noncitizen, however,
when applying to adjust status, must satisfy all other requirements for
adjustment of status, including establishing that the requestor is not
inadmissible under any applicable grounds.
B. Resource Considerations and Impacts on USCIS Processing
DHS has considered the potential impact of this process on
noncitizens applying for other immigration benefits. While there could
be an impact initially on wait times for other USCIS-administered
immigration programs and processes, over time, this process will assist
USCIS in creating efficiencies in other workloads. For example, USCIS
will be able to reduce processing times more quickly for the Form I-
601A because some noncitizens who would have filed a Form I-601A and
pursued consular processing would instead request parole in place and
adjustment of status. DHS also considered the potential impact of this
process on USCIS operations. This process will result in an increased
number of individuals visiting USCIS Application Support Centers (ASC)
to have their biometrics collected and will require USCIS to divert
some resources to develop the technical solutions to administer this
process and complete the adjudications. However, because USCIS will
require all parole in place requestors to pay a fee, it is anticipated
that the agency will recover fully the costs associated with this
workload.
USCIS also anticipates that this process will lead to increased
filings of Forms I-485 because some noncitizens who would otherwise
seek lawful permanent residence via consular processing, or would have
remained without status, will now seek adjustment of status. However,
USCIS expects that the costs to the agency of adjudicating increased
volumes of Forms I-485 will be in large part recovered by the Form I-
485 fees. DHS has also determined that any additional adjudicatory
costs are warranted by the significant public benefits described
throughout this notice.
Finally, the process will provide needed relief to U.S. embassies
and consulates, some of which have significant backlogs of noncitizens
awaiting interviews for immigrant visa applications.
C. Potential Impact on Federal Government and Access to Federal
Benefits
DHS has considered the impact of the proposed process on
eligibility for Federal public benefits. Only noncitizens who are
considered ``qualified aliens'' may access certain Federal public
benefits programs.\177\ ``Qualified aliens'' include noncitizens
paroled under INA section 212(d)(5), 8 U.S.C. 1182(d)(5), for a period
of at least one year, as well as lawful permanent residents and several
other categories.
---------------------------------------------------------------------------
\177\ See Personal Responsibility and Work Opportunity
Reconciliation Act of 1996 (PRWORA), Public Law 104-193, title IV,
110 Stat. 2105, 2260-77 (Aug 22, 1996).
---------------------------------------------------------------------------
However, nearly all of these benefits programs are available only
to noncitizens who have been in ``qualified'' status for at least five
years. For example, the Supplemental Nutrition Assistance Program
(SNAP) generally requires noncitizens to have been in ``qualified''
status for five years before they may potentially receive benefits.
Medicaid, Temporary Assistance for Needy Families (TANF), and the
Children's Health Insurance Program (CHIP) similarly generally require
five years in ``qualified'' status for noncitizens who entered after
August 22, 1996.\178\ Given that noncitizens eligible for this process
are estimated on average to have lived in the United States for 23
years,\179\ DHS anticipates that the majority of those who may be
considered for parole in place will have entered after this date.
Accordingly, most noncitizens who receive parole pursuant to this
process will not be eligible to access public Federal benefits for at
least five years. And, although the provision of parole in place will
start the five-year waiting period prior to adjustment of status, DHS
anticipates that the uptake of these public benefits would likely be
curtailed by the noncitizen's access to lawful employment. Upon receipt
of employment authorization and gainful employment, spouses and
stepchildren of U.S. citizens may no longer need or qualify for public
benefits. Additionally, noncitizens' eventual potential ability to
access benefits after being granted parole through this process may
well be offset by increased tax revenue and other economic benefits
created by their ability to obtain lawful employment.
---------------------------------------------------------------------------
\178\ 8 U.S.C. 1613.
\179\ OHSS Analysis, supra note 3, tbl. 5.
---------------------------------------------------------------------------
Unlike the analysis that most noncitizens who receive parole
pursuant to this process will not be eligible to access public benefits
for at least five years, Cuban and Haitian nationals who are granted
parole are eligible for special ``Cuban-Haitian Entrant Program''
(CHEP) benefits.\180\
---------------------------------------------------------------------------
\180\ See Refugee Education Assistance Act of 1980, Public Law
96-422, sec. 501 (8 U.S.C. 1522 note); 8 CFR 212.5(h); see also U.S.
Dep't of Health and Human Services, Office of Refugee Resettlement,
Benefits for Cuban/Haitian Entrants (Fact Sheet), available at
<a href="https://www.acf.hhs.gov/orr/fact-sheet/benefits-cuban/haitian-entrants">https://www.acf.hhs.gov/orr/fact-sheet/benefits-cuban/haitian-entrants</a>.
---------------------------------------------------------------------------
D. Potential Impact on States
DHS considered the potential impact of the proposed process on
State budgets, including noncitizens' access to means tested benefits,
driver's licenses, and public education. As discussed elsewhere in this
notice, DHS also considered the potential economic benefit to State and
local governments through the provision of employment authorization to
eligible parolees, and increased tax revenue to States that will result
from this process. A comprehensive quantified accounting of local and
State fiscal impacts specifically due to this parole in place process
is not possible, in part due to the case-by-case nature of the
determinations. DHS cannot predict with the available information the
impact these noncitizens might have on State and local programs or the
degree they will contribute to State and local budgets.
Access to means-tested benefits for eligible noncitizens varies at
the State level. States can accept Federal funds to assist them with
providing such benefits and have the authority to determine the
eligibility of qualified noncitizens for certain designated Federal
programs including TANF, Medicaid, and CHIP. Several States-including
Indiana, Mississippi, Ohio, South Carolina, and Texas-deny some
qualified noncitizens access to TANF even after the five-year waiting
period has elapsed. While means-tested benefit costs at both the
Federal and State levels could increase because of potential earlier
access to qualified noncitizen status for the purpose of benefits
eligibility than would otherwise be the case absent this parole in
place process, for most States, any increase in benefit-based spending
for these parolees will be delayed by the five-year waiting period.
Upon receipt of employment authorization and gainful employment,
spouses and stepchildren of U.S. citizens may no
[[Page 67479]]
longer need or qualify for public benefits. Additionally, noncitizens'
eventual potential ability to access benefits after being granted
parole through this process may well be offset by increased tax revenue
and other economic benefits created by their ability to obtain lawful
employment.
The extent to which this process will impact States in the short
term because of noncitizens granted parole gaining access to driver's
licenses will depend on State policy. Although 19 States, the District
of Columbia, and Puerto Rico already provide noncitizens access to
driver's licenses regardless of immigration status, other States make
access to driver's licenses contingent on lawful immigration status.
However, the REAL ID Act of 2005 \181\ and its implementing regulations
exclude parolees from the list of categories of individuals eligible
for REAL ID-compliant licenses. Therefore, whether noncitizens who are
granted parole under this process can receive driver's licenses will
depend upon States' willingness to continue to issue non-REAL ID
compliant licenses to this population, either because they issue
driver's licenses to noncitizens regardless of their immigration status
or because they contemplate issuing licenses to noncitizens in
immigration statuses beyond those included in the REAL ID Act. DHS
acknowledges that the provision of parole in place may enable
noncitizens to pursue adjustment of status sooner than they otherwise
would, and in States where a noncitizen would not have access to a
driver's license before becoming an LPR, this process would render them
eligible to apply for a driver's license sooner. However, many States
may also charge fees for driver's licenses, and therefore the cost to
States caused by additional noncitizens becoming eligible for driver's
licenses following a grant of parole in place under this process may be
mitigated.
---------------------------------------------------------------------------
\181\ See Public Law 109-13, div. B, secs. 201-207 (codified at
49 U.S.C. 30301 note); see also 6 CFR pt. 37.
---------------------------------------------------------------------------
DHS also considered the impact of this process on State education
costs. DHS recognizes that undocumented noncitizen students receive K-
12 education that is publicly funded. Although the provision of parole
to some of these undocumented noncitizen students may result in some
indirect fiscal effects on State and local governments, the direction
of the effect is dependent on multiple factors. Given the criteria
requiring stepchildren of U.S. citizens to be continuously physically
present in the United States since at least June 17, 2024, these
noncitizens would already be present in the United States and likely
attending public school even in the absence of this process.
While some States may allow noncitizens with parole to qualify for
in-state tuition rates at public universities, which may not be
available to similarly situated noncitizens without parole, the costs
to the States will depend on choices they make and will be location-
specific. The fiscal impact is therefore difficult to quantify, let
alone predict. However, any cost associated with additional access to
in-state tuition rates at public universities may be offset by the
further pursuit of education and the resultant economic benefits. The
provision of parole and employment authorization may motivate
recipients to continue their education, pursue post-secondary and
advanced degrees, and seek additional vocational training, which
ultimately provides greater opportunities, financial stability, and
disposable income for themselves and their families.\182\ This in turn
benefits their communities at large and increases the potential
economic benefit to State and local governments.
---------------------------------------------------------------------------
\182\ See, e.g., Zachary Liscow and William Woolson, Does Legal
Status Matter for Educational Choices? Evidence from Immigrant
Teenagers, American Law and Economics Review (Dec. 11, 2017),
available at <a href="https://dx.doi.org/10.2139/ssrn.3083026">https://dx.doi.org/10.2139/ssrn.3083026</a>.
---------------------------------------------------------------------------
As described throughout this notice, this process will provide
multiple significant benefits to the U.S. public. DHS has identified
and considered the interests of the parties affected by establishment
of this process and has, to the extent possible, determined that the
significant public benefits of the case-by-case parole of noncitizens
under this process to the United States outweigh the anticipated costs
to Federal and State governments alike. Additionally, given that the
population eligible to request parole in place under this process is
limited to those who have been continuously physically present in the
United States since June 17, 2014, or in the case of stepchildren of
U.S. citizens, since at least June 17, 2024, DHS does not believe this
process will meaningfully affect or create incentives for noncitizens
to enter the United States.
VIII. Regulatory Requirements
A. Analysis of Benefits, Costs, and Governmental Transfers
Estimated Population
According to DHS analysis from the Office of Homeland Security
Statistics, this process could benefit an estimated 500,000
unauthorized noncitizen spouses of U.S. citizens as well as an
estimated 50,000 unauthorized noncitizen stepchildren of U.S. citizens.
The estimated 500,000 unauthorized noncitizen spouses is the average of
the estimated interval of 300,000 to 700,000 potential noncitizen
spouses of U.S. citizens. To provide a more informed analysis when
estimating costs, benefits, and transfers of this process, DHS assumes
two scenarios: one designates ``scenario 350K'' as a low population
estimate scenario that includes 300,000 spouses and 50,000
stepchildren, and the other designates ``scenario 750K'' as a high
population estimate that includes 700,000 spouses and 50,000
stepchildren.\183\ For the final estimated numbers DHS takes the point
estimate, that is the average between the low estimate and high
estimate scenarios.
---------------------------------------------------------------------------
\183\ DHS cannot accurately predict the behavior of the affected
population and hence cannot accurately forecast how many individuals
would choose to pursue this policy. The two population scenarios can
therefore better inform stakeholders of possible impacts, showing
estimated impacts if less (more) individuals than the point estimate
of 550,000 choose to pursue this policy.
---------------------------------------------------------------------------
Using data on the estimated unauthorized immigrant population
living in the United States,\184\ DHS first estimates the broader
unauthorized population present in the United States for at least 10
years. DHS then separates the unauthorized populations into two
categories, making assumptions on the population that is PWAP
(previously known as entered without inspection or EWI) and the
population that overstayed their period of admission. The PWAP
population is the population of interest under this process. Once the
PWAP population in the United States is estimated, DHS filters this
population by the proportion of the unauthorized population married to
a U.S. citizen,\185\ which yields the estimated 500,000 unauthorized
noncitizen spouses present in the United States for at least 10 years.
To arrive at the estimated number of 50,000 stepchildren, DHS uses
fertility data to assume a rate of children per marriage as well as
assumptions on the average household composition of U.S. citizen
children and unauthorized stepchildren.\186\
---------------------------------------------------------------------------
\184\ Bryan Baker and Robert Warren, Estimates of the
Unauthorized Immigrant Population Residing in the United States:
January 2018-January 2022, available at <a href="https://ohss.dhs.gov/topics/immigration/unauthorized-immigrants/estimates-unauthorized-immigrants">https://ohss.dhs.gov/topics/immigration/unauthorized-immigrants/estimates-unauthorized-immigrants</a> (last visited June 17, 2024).
\185\ This rate is on average 12%. Source: Migration Policy
Institute, Profile of the Unauthorized Population: United States,
available at <a href="https://www.migrationpolicy.org/data/unauthorized-immigrant-population/state/US">https://www.migrationpolicy.org/data/unauthorized-immigrant-population/state/US</a> (last visited June 17, 2024).
---------------------------------------------------------------------------
[[Page 67480]]
Wages
DHS estimates that this process would result in increased earnings
for the population that gains work authorization by removing the ``wage
penalty'' that affects undocumented individuals in the United States.
Determining the magnitude of this increase in earnings requires
identifying the percentage of the population that applies for parole
that is in the labor force, the size of the wage penalty, and the wages
of this population in the baseline.
First, DHS assumes the labor participation rate of this population
is similar to that of foreign-born workers. Therefore, DHS estimates
that approximately 67 percent of this population are currently in the
informal labor force,\187\ or 234,500 individuals for scenario 350K,
and 502,500 individuals for scenario 750K. DHS assumes these estimates
remain constant with this process, i.e., the same percentage in this
population would transition to or chose to participate in the formal
labor market once authorized under this process.
---------------------------------------------------------------------------
\187\ In 2023, the labor force participation rate of the foreign
born increased to approximately 67 percent (rounded value). See BLS
Foreign-Born Workers: Labor Force Characteristics--2023 (May 21,
2024) <a href="https://www.bls.gov/news.release/archives/forbrn_05212024.pdf">https://www.bls.gov/news.release/archives/forbrn_05212024.pdf</a>.
Calculation: 350,000 * 67 percent = 234.500, and 750,000 * 67
percent = 502,500.
---------------------------------------------------------------------------
DHS recognizes that providing employment authorization could induce
additional entry into the labor force. For example, Pope (2016) found
DACA increased the likelihood of a sample of noncitizens in DACA-
eligible age groups working by 3.7-4.8 percentage points and their
number of hours worked per week by 0.9-1.7 hours, stemming from an
increase in labor force participation and a decrease in
unemployment.\188\ Pope also notes that because the non-citizen sample
analyzed was comprised of nearly 40% authorized immigrants, the true
effect would be approximately 1.6 times larger (5.9-7.7 percentage
points). Additional research from Pan (2012) \189\--studying the
effects of the Immigration Reform and Control Act of 1986--and Orrenius
and Zavodny (2015) \190\--studying the effects of Temporary Protected
Status--provides more granular detail that, following receipt of lawful
status, wage increases (discussed below) may be clustered among men and
higher employment rates may be clustered among women. However, DHS
assumes no increase in employment resulting from this process. As a
result, the assumption of a static employment rate could result in an
underestimate of the total impact.
---------------------------------------------------------------------------
\188\ Nolan G. Pope, The Effects of DACAmentation: The Impact of
Deferred Action for Childhood Arrivals on Unauthorized Immigrants,
Journal of Public Economics, vol. 143, 2016: 98-114.
\189\ Pan, Y. The Impact of Legal Status on Immigrants' Earnings
and Human Capital: Evidence from the IRCA 1986. J. Labor Res. 33,
119-142 (2012).
\190\ Orrenius, Pia M., and Madeline Zavodny. 2015. ``The Impact
of Temporary Protected Status on Immigrants' Labor Market
Outcomes.'' American Economic Review, 105(5): 576-80.
---------------------------------------------------------------------------
Second, there is an extensive literature showing that documented
immigrants tend to earn higher wages than those who are undocumented.
This difference is known as the wage penalty,\191\ which Borjas and
Cassidy (2019) define as the wage difference between observationally-
equivalent documented and undocumented immigrants.\192\ In order to
quantify the marginal impact of providing employment authorization on
earnings for undocumented spouses, DHS consulted several studies. Table
1 shows the studies and the various wage penalty percentages from their
findings.
---------------------------------------------------------------------------
\191\ Despite being labeled as a ``wage penalty,'' such
estimates are generally reported as a percentage of earnings before
work authorization, rather than after.
\192\ See George J. Borjas and Hugh Cassidy, The wage penalty to
undocumented immigration, Lab. Econ. 61, art. 101757 (2019)
(hereinafter Borjas and Cassidy (2019)), <a href="https://scholar.harvard.edu/files/gborjas/files/labourecon2020.pdf">https://scholar.harvard.edu/files/gborjas/files/labourecon2020.pdf</a>.
Table 1--Studies on Undocumented Worker Wage Penalties
----------------------------------------------------------------------------------------------------------------
Wage penalty Author Title and descriptor
----------------------------------------------------------------------------------------------------------------
4% to 6%............................. Borjas & Cassidy (2019) The wage penalty to undocumented immigration.
Wage earned as a documented noncitizen could be,
on average, 4 to 6 percent higher than the wage
of an individual working as an undocumented
noncitizen.
5%................................... Ortega & Hsin (2022)... Occupational barriers and the productivity
penalty from lack of legal status.
The wage gap between documented and undocumented
workers in the period 2010-2012 is 12 percent
in occupations with entry barriers (30.1% of
undocumented workers) and 2 percent in
occupations without entry barriers (69.9% of
undocumented workers) when accounting for
observable characteristics (similar education
and skills) other than occupation.
8%................................... Albert (2021).......... The Labor Market Impact of Immigration: Job
Creation versus Job Competition.
Using data from 1994-2016, the wage gap--
conditional on observable characteristics--
between undocumented and document immigrants is
8 percent.
14% to 24%........................... Kossoudji & Cobb-Clark Coming Out of the Shadows: Learning about Legal
(1998). Status and Wages From the Legalized Population.
The Immigration Reform and Control Act of 1986
(IRCA) authorized the granting of lawful status
to approximately 1.7 million long[hyphen]term
[…truncated; see source link]Indexed from Federal Register on August 20, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.