Summary
- The new “parole in place” program is based on a strained interpretation of section 212(d)(5) of the Immigration and Nationality Act.
- Aliens with criminal convictions are generally barred from the program, but USCIS policy will allow applicants to submit evidence of “positive factors” to overcome their ineligibility on the basis of a misdemeanor conviction.
- Parole in place, under this program, is only available to aliens who crossed the border illegally. Aliens who overstayed their visas are ineligible.
- A spouse or stepchild of an U.S. citizen may still be eligible for the parole in place under this program even if the U.S. citizen is no longer alive.
- Aliens who are currently in removal proceedings or have a order of removal in place may still receive parole in place under this program.
- The Biden-Harris administration will generally not issue Notices to Appear (the charging documents for removal proceedings) to applicants who are known to be in the United States illegally and are denied parole in place.
- The Biden-Harris administration has fast tracked the implementation of this program despite substantial fraud found in similarly implemented parole programs.
On Friday, August 16, U.S. Citizenship and Immigration Services (USCIS) released a guide on how to apply for its new “parole in place” policy (called the “Keeping American Families Together” program by the Biden-Harris administration) that will allow aliens living illegally in the United States to receive parole in place if they are the spouse or stepchild of a U.S. citizen. The guide was published just one business day before USCIS began to accept applications for this administrative amnesty.
Up until this point, the public has not received much information about the details of the new program. The guide and soon-to-be published Federal Register notice, however, shine some light on more details of the administrative amnesty.
What Is Parole in Place?
To understand parole in place, you must first understand what parole is in the immigration context. Section 235 of the Immigration and Nationality Act (INA) requires aliens seeking admission to the United States (including illegal entrants) to prove they have a visa or other document that permit their admission, and that they are otherwise admissible. Section 212(d)(5)(A) of the INA, however, authorizes the executive branch (originally the attorney general, now the U.S. Department of Homeland Security (DHS) secretary) to allow inadmissible aliens to enter the United States with parole for “urgent humanitarian” or “significant public benefit” reasons (like emergency medical treatment or to participate as a witness in a criminal trial) and for specific periods of time.
Parole, therefore, is a statutory exception to the rule that all arriving inadmissible aliens — both at the ports of entry and across the border illegally — be detained pending completion of the immigration proceedings or returned. Notably, a grant of parole alone does not make an alien without a lawful immigration status any less removable. In fact, the parole statute requires DHS to take parolees back into custody “when the [temporary] purposes of such parole … have been served” and treat them like all other aliens seeking admission at ports of entry once their periods of parole have expired.
Parole in place, on the other hand, is based on the same parole statute, but was devised by the executive branch to allow aliens who are already in the country unlawfully to obtain a sort of “authorized presence” — in effect, retroactively paroling them into the country. As my colleague Andrew Arthur recently explained:
Parole in Place is a concept that was first proposed under the Clinton administration (at a time it was utterly divorced from any congressional sanction) that would allow the administration to post hoc parole aliens already present in this country.
It received the veneer of sanction in the National Defense Authorization Act for FY 2020 (NDAA 2020), but then only for members of the U.S. Armed Forces, their spouses, children, and widows.
In other words, it’s legally questionable (at best) to conclude the Biden administration could extend Parole in Place to 1.1 million alien spouses, but as I explained in-depth in that recent piece, it would allow them to then obtain green cards through “adjustment”.
That’s notwithstanding the fact that aliens who have entered illegally (as most of the covered population has) are barred by statute from that adjustment process.
Parole in place would allow an alien already unlawfully present in the United States to remain “with authorization”, apply for an employment authorization document (EAD or “work permit”) and a Social Security number, and, in some circumstances, apply for lawful permanent residence (a green card). Parolees may also become eligible for public benefits at the state level and, after five years, at the federal level.
Who Is Eligible for Parole in Place under This Program?
To be eligible parole in place under this program, an alien living unlawfully in the United States must either have:
- A legally valid marriage to a U.S. citizen as of June 17, 2024 (the day after the program was announced); or
- A parent who had a legally valid marriage to a U.S. citizen on or before June 17, 2024, and before the stepchild’s 18th birthday, and meet other eligibility requirements.
The alien must also have been continuously present in the United States since at least June 17, 2024, through the date of filing a request for parole, submitting biometrics to USCIS, and undergoing a background check. Additionally, any alien who has been convicted of a felony is disqualified for obtaining parole in place under this program. All other criminal convictions, including those that have been “dismissed, expunged, vacated, sealed, or invalidated” but excluding minor traffic offenses, will result in a “presumption of ineligibility for this process”. An alien with a conviction, however, can overcome this presumption by providing documentation demonstrating “positive factors” that can be considered to “overcome” the presumption and demonstrate that the alien “warrants a favorable exercise of discretion”.
USCIS clarified that parole in place under this policy is “discretionary”, so even those who meet the basic eligibility requirements may nonetheless be denied parole on the basis of an immigration officer’s discretion. USCIS clarified that the burden is on the requestor to demonstrate that they are eligible and that parole is warranted as a matter of discretion for urgent humanitarian or significant public benefit reasons.
What reporting on this program has generally not highlighted, though, is that parole in place under this program is only available to aliens who entered the United States illegally and not just remained in the United States unlawfully. In most cases, that means aliens who crossed the border illegally. Aliens who are married to U.S. citizens or are the stepchild of U.S. citizens who were admitted lawfully but overstayed the validity period of their visa are not eligible for parole in place, because overstayers are not considered to be “applicants for admission” under the INA. Again, this is because Congress did not draft the parole statute with this kind of use in mind. Parole, under 212(d)(5) of the INA, is supposed to allow for the temporary, authorized entry of an inadmissible alien (i.e., an applicant for admission).
Aliens who are already in the United States, therefore in theory, have no need for parole. What they do need, in the Biden-Harris administration’s perspective, however, are work permits, Social Security numbers, and the ability to obtain lawful permanent residence (green cards). Parole is a loophole for inadmissible aliens to obtain all three.
Second, parole in place is also available under this program to both spouses and stepchildren whose U.S. citizen spouse or stepparent (respectively) is no longer alive — raising the question of how such issuances of parole would satisfy both the purported policy objective for this program (“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”) and legal standards under the parole statute.
Third, aliens who are in removal proceedings or have had an order of removal issued against them may still qualify for parole in place under this program. This means that the Biden-Harris administration is allowing USCIS to overlook an immigration judge’s decision that an individual should be removed from the United States to allow them to remain in the country, work, and potentially receive a green card.
And finally, the Biden-Harris administration made clear that if an alien who is in the country unlawfully applies for parole in place under this policy and is denied, the administration has no intention of issuing a notice to appear (NTA, a charging document for immigration proceedings) to the alien unless USCIS determines that the alien poses a threat to national security, public safety, or border security. Given DHS Secretary Alejandro Mayorkas’s restrictive “enforcement priorities”, however, this should be no surprise.
The Program Is Being Fast-Tracked Despite Fraud Concerns
Another point that is not getting much attention is the extent to which the Biden-Harris administration is fast-tracking the roll-out and implementation of this program. The Biden-Harris administration chose to circumvent the notice and comment procedures required by the Administrative Procedure Act (they claim the policy is exempt) and begin accepting applications for the program on the new Form I-131F before completing mandatory notice and comment procedures required by the Paperwork Reduction Act. Typically, agencies must respond to public comments on a new form and obtain approval from the Office of Information and Regulatory Affairs (OIRA) before they can request information from the public with an application.
The administration is also proceeding with its roll-out without first having resolved the substantial fraud USCIS uncovered with a similar parole program it created, known as “CHNV Parole”. The CHNV parole program was designed to allow up to 30,000 inadmissible aliens from Cuban, Haiti, Nicaragua, and Venezuela enter to the United States each month and apply for work authorization. This program, based on DHS’s same strained interpretation of 212(d)(5), was paused in July after an internal report by the USCIS Fraud Detection and National Security Directorate (FDNS) uncovered large amounts of fraud in applications for those sponsoring the applicants.
The FDNS report revealed that “100,948 forms were filled out by 3,218 serial sponsors — those whose [Social Security] number appears on 20 or more forms”. FDNS “also found that 24 of the 1,000 most used numbers belonged to dead people. Meanwhile, 100 physical addresses were used between 124 and 739 times on over 19,000 forms. Those addresses included storage units. One sponsor phone number was submitted on over 2,000 forms, and there were 2,839 forms with non-existent sponsor zip codes, according to the leak.”
Nevertheless, the new parole in place for spouses and stepchildren of U.S. citizens program allows applicants to submit easy to forge documents, such as school identification cards, as proof of identity, and receipts, report cards, or “[a]ttestations to the requestor’s physical presence by religious entities, unions, or other civic or community organizations” as evidence establishing applicant’s continuous presence in the United States, among other easy-to-forge and difficult-to-verify documents.
Given that the class of aliens that may benefit this program are already within the lowest enforcement priorities of any administration, let alone this one, the Biden-Harris administration’s “fast-tracking” emphasizes the more likely motivation for the administrative amnesty: the upcoming election and all future elections. The Biden-Harris administration is interested in both appeasing the progressive base of the Democratic Party as well as adding to the population of future voters. This program will accomplish that by allowing aliens without a lawful immigration status to be put on a pathway to citizenship using the parole in place loophole.