washington — The Biden administration on Monday launched a parole program for spouses and stepchildren of U.S. citizens, allowing them to apply for lawful permanent residence without leaving the country and avoiding a potential ban on reentry.
The program, announced June 17, is known as parole in place.
Parole under immigration law is very different than in the criminal justice context, according to the American Immigration Council.
Under immigration law, parole is a way for a noncitizen to enter, live and sometimes work temporarily in the U.S. Parole plays an important role in allowing someone to meet the criteria to adjust status under immigration law.
The Immigration and Nationality Act gives the secretary of the Department of Homeland Security discretionary power to temporarily parole individuals into the United States on a case-by-case basis for urgent humanitarian reasons or significant public benefit. It also allows DHS to grant parole to people who are already in the United States without lawful immigration status, enabling them to stay for a specified period.
Eligibility
To be eligible for parole, an undocumented person must have been continuously present in the U.S. for at least 10 years, be legally married to a citizen before June 17, 2024, have not been convicted of any crime, and have not posed a threat to national security or public safety, among other criteria.
The person must fill out a lengthy application and pay a fee to apply, currently $580. There is also a $470 fee to request employment authorization and a fee of $1,440 to apply for permanent residency. Finally, the U.S. citizen spouse must file a form for stepchildren, which costs $625 per individual.
If the person meets all of the requirements and DHS approves the application, the person will have three years to apply for permanent residency. During this time, the person will be allowed to remain in the U.S. with family and be eligible for work authorization.
Undocumented spouses of US citizens
In its parole fact sheet, the American Immigration Council says spouses of U.S. citizens typically qualify for an immigrant visa as an immediate relative of the citizen. But for those spouses who entered the United States without authorization, adjusting immigration status is “bureaucratically onerous, and risky.”
“Under federal law, some immigrants — namely, those who have already been ‘inspected and admitted’ (generally, anyone who entered through an official port of entry) or ‘inspected and paroled’ into the U.S. — can apply to adjust their status to permanent residency without having to depart the country to attend an immigrant visa interview at a U.S. embassy or consulate abroad. However, immigrants who entered without inspection do not have this option. They must leave the United States, go to a consulate abroad, and obtain a new immigrant visa to reenter,” the fact sheet says.
Leaving the U.S. to visit a consulate often triggers a lengthy reentry ban. A 1996 immigration law imposes bans of up to 10 years on individuals who have been "unlawfully present" in the U.S. for more than a year. Being "unlawfully present" also makes them ineligible for visas.
Yet, current legislation does allow an applicant to file for a waiver. A U.S. government official approves these waivers on a case-by-case basis, with the applicant required to meet certain conditions.
One such condition is “if they can demonstrate that their citizen spouses would suffer ‘extreme hardship’ from such a prolonged separation,” the American Immigration Council said in its fact sheet. As of April, decisions on these waiver requests were taking more than 41 months.
Ultimately, an adjustment of immigration status for someone who entered the country illegally, even if the person is married to a U.S. citizen, is at the discretion of a U.S. immigration officer.
Under the parole in place program, undocumented immigrants married to U.S. citizens will be allowed to stay in the U.S. for up to three years, obtain work authorization and apply for lawful permanent resident status without having to leave the country.
DHS estimates that 500,000 undocumented spouses of U.S. citizens would be eligible to apply, as would about 50,000 stepchildren.
Criticism
In June, a group of Republican senators sent a letter to President Joe Biden expressing "grave concerns" about the parole in place program. The lawmakers said this immigration relief "directly contravenes the laws Congress has passed" and "will exacerbate the ongoing border crisis."
“We have previously challenged the legality of your administration’s parole authority and have sought to reform this authority to ensure that decisions regarding parole are restored to Congress’ original intent — ‘on a case-by-case basis’ to aliens who are not already present in the U.S. … We urge you to rescind this policy immediately,” the lawmakers wrote.
While the program has yet to be challenged in court, Biden administration officials say they are confident about its legal standing.
“We feel strongly that we are on strong legal footing to make this announcement and are comfortable doing so,” a senior official said on background during a June call with reporters. Officials speaking on background can remain anonymous.
