Question: I am married to a US Citizen and I want to adjust to that of a Lawful Permanent Resident. What can I do?
Answer: Are you inside the US?
Question: Yes.
Answer: Did you enter illegally?
Question: Yes?
Answer: Did you commit any crimes, any fraud or have you been issued any deportation orders?
Question: No.
Answer: Is your spouse in the military?
Question: Yes.
Answer: There is a possibility for the immediate family members of US military personnel. Family members of US military personnel often run afoul of our nation’s complex and dysfunctional immigration laws, and the particular burdens imposed on military personnel by their service makes resolving those problems even more difficult than solving similar problems for civilian clients. You may want to consider an application for one of the more common discretionary remedies, a form of immigration parole that is commonly called “parole in place.”
Question: What is Parole in Place?
Answer: Parole in place (PIP) is a process by which USCIS assists family members of US military personnel to become eligible to “adjust status” in the United States and thus become permanent residents of the United States. Under Immigration and Nationality Act (INA) Section 245(a), a person cannot adjust status unless he or she has been “admitted or paroled” into the United States. Usually, a person who has not been “admitted or paroled” into the United States cannot obtain lawful permanent residence unless he or she leave the United States and travels abroad to a US consulate. If a person who has not been admitted or paroled into the United States leaves the United States and attempts to undergo consular processing, however, the person nearly always faces an inadmissibility bar that is triggered by departing the United States. Thus, the person cannot obtain his or her lawful permanent residence status easily through consular processing. PIP attempts to avoid the separation of military families by allowing some family members—in meritorious cases only—to adjust their status inside the United States and thereby avoid a lengthy separation that might harm the military member’s morale, readiness, or ability to complete his or her service. PIP is granted in order “to preserve family unity and address US Department of Defense concerns regarding soldier safety and readiness for duty.” PIP is also a remedy that appeals to the views of Americans that in wartime, the government should provide special support to military families; when the availability of PIP was made public, 18 members of the House of Representatives, including nine Republicans, wrote to DHS to indicate their support for the program.
PIP is only available to persons who are present in the United States; it should not be confused with the “humanitarian parole” that is available to persons who are outside the United States.
Question: Who should request PIP?
Answer: Under current immigration law, no one who entered the United States without inspection can adjust status unless he or she falls into a category in which special rules apply (such special rules apply to asylees, Cubans, special immigrant juveniles, Violence Against Women Act petitioners, grandfathered aliens, and some others). A PIP request is often proper for immediate military family members who entered the United States without inspection, do not have an eligible visa petition or labor certification filed on or before April 30, 2001, and do not otherwise fall into a special adjustment category.
Question: What if the person requesting PIP is in proceedings?
Answer: PIP is possible when a person is in removal proceedings. If a military family member is in removal proceedings and is granted PIP, an immigration judge (IJ) would be prevented from adjudicating a follow-on adjustment application. USCIS, however, does have jurisdiction to adjudicate an adjustment application in this situation. Family members in this situation may file a new adjustment application with USCIS—after the PIP is granted—and then request termination of proceedings without prejudice to allow them to pursue administrative remedies. Counsel may explain that whether or not the IJ terminates, the respondent will still be eligible to adjust status, and if the case is not terminated and the IJ proceeds, the IJ may be facing a future Motion to Reopen.
Question: Who should NOT request PIP?
Answer: A grant of PIP will not resolve immigration problems that involve issues other than ineligibility under INA §245(a). A grant of PIP will not, for example, lift a permanent bar for false claim to United States citizenship; work to waive a criminal ground of inadmissibility; relieve an immigrant of the consequences of a prior deportation or removal order; or allow an immigrant to adjust status when the immigrant needs a waiver of some other ground of inadmissibility. PIP only cures the problem that an immigrant cannot adjust status without showing that he or she has been “admitted or paroled.” PIP is not a magic solution to every immigration problem. It has very limited application to a specific set of circumstances when the military family member has not been admitted or paroled in a manner that allows adjustment under INA §245(a).
Requesting PIP may also not be advisable when there is no military-related reason to grant the PIP. For example, USCIS may determine not to grant PIP when the military member is about to be discharged from the military; when the military member is serving as an inactive Reserve member; or when a military member is stationed abroad (there, the family member’s presence in the United States is not necessary for a military-related reason).
A military family member also does not need PIP if the military family member was admitted lawfully but has no documentation of the entry.
Question: How do I request PIP?
Answer: The PIP program is new, and as of this writing, no formal regulatory guidance has been issued by DHS or USCIS. Practitioners report a variety of different approaches at different USCIS offices.
In most USCIS field offices, a PIP request consists of a hardship letter signed by the service member and supporting documentation, which should be submitted to the local USCIS office having jurisdiction over the service member’s residence or place of duty. An example of the list of requirements from the Los Angeles USCIS Office is reproduced in the Appendix.
The opening paragraph of the hardship letter should state that this is a request for a parole in place so that the particular military family member can file an Application to Register Permanent Residence or Adjust Status (I-485) while in the United States. The body of the letter should describe the circumstances that led the service member to join the armed forces. The letter should then describe the history of the military member’s relationship with the family member seeking PIP; establishing the bona fide nature of the relationship is extremely important, as USCIS is unlikely to grant PIP in any case in which there are indicators of marriage fraud. The family member’s immigration status should be discussed, including the status of any petitions filed for the family member, such as an I-130. The conditions of the family member’s home country at the time he or she came to the United States should be discussed. The current conditions may be mentioned if they are such that a return to the country would pose a danger to the family member’s health or safety. If applicable, the family member’s loss of Commissary and Post Exchange privileges, military housing, access to military family member health care, and assistance from the Family Readiness Group may be mentioned. Finally, the hardship the service member would experience if the family member were deported should be described in detail. If the service member or the service member’s children have special needs that make them especially dependent on the family member for support, these needs should be explained and supporting documentation provided where appropriate. At a minimum, the body of the letter must contain the service member’s name, date of birth, place of birth, rank in military, branch of service, and unit of assignment, as well as the dates and places of birth of the family member and any children. Any upcoming deployments for which the service member is preparing should be mentioned.
Question: What documents should be provided?
Answer: Generally, you want to provide the following: The service member’s birth certificate and proof of US citizenship (if applicable); The family member’s birth certificate; The birth certificates of any children; If the family member is the spouse, the couple’s marriage certificate and evidence of the bona fide nature of the marriage; The family member’s military family member identification card; A copy of Defense Eligibility Enrollment Reporting System enrollment documentation for the family member; Two original passport photos of the family member; A copy of any deployment orders for the service member; and additional documents that substantiate the case of hardship can be enclosed as well.
Question: Will the PIP request be granted?
Answer: A Parole in place determinations are made on a case-by-case basis and are purely discretionary. Your client should not assume his or her request is approved until USCIS officially notifies him or her of the approval. Typically, clients are notified to come for an interview with a USCIS officer who is specially trained to handle PIP applications, and that officer will make an initial determination whether to grant the PIP, but the officer’s decision will be reviewed at a higher level before the PIP request is approved.
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Brian D. Lerner is an Immigration and Naturalization Attorney. He is a Certified Specialist in Immigration and Nationality Law as Certified by the State Bar of California, Board of Legal Specialization. Mr. Lerner is married to a Filipina and has been helping Filipinos immigrate to the United States for nearly 20 years. His firm represents clients in Deportation/Removal proceedings, does Waivers, Appeals, Naturalization, Adjustments, Criminal Relief, Citizenship, Consulate Processing, Work Permits, Investment Visas and all other areas of Immigration and Naturalization Law. You can go online to http://www.californiaimmigration.us/ and get a free consultation or call us at (562) 495-0554 for an in-person office consultation.
