Parole in Place: The Secret Sauce For Administrative Immigration Reform

by

Gary Endelman and Cyrus Mehta







PAROLE IN PLACE: THE SECRET SAUCE FOR ADMINISTRATIVE IMMIGRATION REFORM









On November 15, 2013, the
USCIS issued a Policy Memorandum formalizing the granting
of parole to persons who are present in the United States without admission or
parole and who are spouses, children and parents of US citizens serving in the
US military or who previously served in the US military. While parole traditionally
applies to those who seek to come to the United States, the expansion of this
concept to those already here is known as “parole in place”.



According to this memo,
military preparedness can be potentially adversely affected if active members
of the military worry about the immigration status of their spouses, parents
and children. The memo makes a similar commitment to veterans who have served
and sacrificed for the nation, and who can face stress and anxiety because of
the immigration status of their family members. Such persons can now formally
apply for parole in place (PIP) through a formal procedure pursuant to the
ability of the government to grant parole under INA section 212(d)(5)(A). PIP
would allow them to adjust status in the US rather than travel abroad for
consular processing of their immigrant visas and thus potentially triggering
the 3 or 10 year bars.



As a quick background, an
individual who is in the US without admission or parole cannot adjust status
through an immediate relative such as a US citizen spouse, parent or son or
daughter. This person is inherently inadmissible under INA section
212(a)(6)(A)(i), which provides: 



An
alien present in the United States without being admitted or paroled, or who
arrives in the United States at any time or place other than as designated by
the Attorney General, is inadmissible.



Section 212(a)(6)(A)(i) renders
an alien inadmissible under two related grounds: 1) an alien present in the US
without being admitted or paroled or 2) an alien who arrives in the United
States at any time or place other than as designated by the Attorney General.



The grant of PIP to a person
who is present in the US without being admitted or paroled can wipe out the
first ground of inadmissibility in section 212(a)(6)(A)(i). PIP would then also
allow this person to adjust status in the US under section 245(a) - as the
person needs to have been “inspected and admitted or paroled” – without needing
to leave the US.  The ability to adjust
status through PIP would obviate the need  to travel overseas and apply for the visa, and
thus trigger the 3 or 10 year bar pursuant to INA section 212(a)(9)(B)(i) and
(ii). Since there will be no departure triggering the 3 and 10 year bars, this
person would no longer need to file a waiver or an advance provisional waiver by demonstrating extreme
hardship to a qualifying US citizen relative to overcome the 3 and 10 year bars
before leaving the US.



So far so good, but how does
one overcome the second ground of inadmissibility in section 212(a)(6)A)(i),
which relates to “an alien who arrives in the United States at any time or
place other than as designated by the Attorney General?” The memo skillfully
interprets this clause as relating to an alien who is in the process of
arriving in the US without inspection. Thus, the second ground only applies to
an alien who is presently arriving in the US while the first ground applies to
an alien who already arrived in the US without admission or parole. If the
second ground is interpreted as applying to an alien who arrived in the past,
then it would make the first ground superfluous, according to the memo. It
would also then make the 3 year bar under INA section 212(a)(9)(B)(i)
superfluous as a person who at any point arrived, if used in the past tense,  at a place or time other than designated by
the Secretary of Homeland Security would be  permanently inadmissible rather than inadmissible
for only 3 years. Thus, if the second ground of inadmissibility is no longer
applicable with respect to an alien who has already arrived in the US, then the
grant of PIP would allow such a person to adjust in the US by overcoming the
first ground under INA section 212(a)(6)(A)(i).



The extension of PIP to the
families of current or former military service men and women is a proper
recognition of their contribution to the nation and an attempt to benefit those
who have given so much to the rest of us. 
While such logic is compelling, why not expand its application to other
instances where aliens have served and strengthened the national interest or
performed work in the national interest? How about granting PIP to families of,
outstanding researchers striving to unlock the mysteries of science and
technology, those with exceptional or extraordinary ability, and key employees
of US companies doing important jobs for which qualified Americans cannot be
found? And there is also a compelling interest in ensuring family unification
so that US citizens or permanent residents may feel less stressed and can go on
to have productive lives that will in turn help the nation.  All such people do us proud by making our
cause their own and the need of their loved ones to come in from the shadows is
real and present. Indeed, the non-military use of PIP was advocated by top
USCIS officials several years ago in a memo to USCIS Director Mayorkas, a memo
leaked by its critics who wished successfully to kill it.



In the face of inaction on
the part of the GOP controlled House to enact immigration reform, granting PIP
to all immediate relatives of US citizens would allow them to adjust in the US
rather than travel abroad and risk the 3 and 10 year bars of inadmissibility.
Such administrative relief would be far less controversial than granting
deferred action since immediate relatives of US citizens are anyway eligible
for permanent residence. The only difference is that they could apply for their
green cards in the US without needing to travel overseas and apply for waivers
of the 3 and 10 year bars.



The concept of PIP can be
extended to other categories, such as beneficiaries of preference petitions,
which the authors have explained in The Tyranny of Priority Dates. However,
they need to have demonstrated lawful status as a condition for being able to
adjust status under INA section 245(c)(2) and the memo currently states that
“[p]arole does not erase any periods of unlawful status.” There is no reason
why this policy cannot be reversed. The grant of PIP, especially to someone who
arrived in the past without admission or parole, can retroactively give that
person lawful status too, thus rendering him or her eligible to adjust status
through the I-130 petition as a preference beneficiary. The only place in INA
section 245 where the applicant is required to have maintained lawful
nonimmigrant status is under INA section 245(c)(7), which is limited to
employment-based immigrants. Family-based immigrants are not so subject. What about
INA section 245(c)(2)’s insistence on “lawful immigration status” at the
snapshot moment of I-485 submission? 
Even this would not be a problem. For purposes of section  245(c) of the Act, current regulations
already define “lawful immigration status” to include “parole status which has not expired, been revoked,
or terminated.” 8 C.F.R. section 245.1(d)(v). Indeed, even if one has already
been admitted previously in a nonimmigrant visa status and is now out of
status, the authors contend  that this
person should be able to apply for a rescission of that admission and instead
be granted retroactive PIP. Thus, beneficiaries of I-130 petitions, if granted
retroactive PIP, ought to be able adjust their status in the US.



There is also no reason why
PIP cannot extend to beneficiaries of employment I-140 petitions. If this is
done, would such persons be able to adjust status to lawful permanent resident
without leaving the USA? In order to do that, they not only need to demonstrate
lawful status, but also  to have maintained
continuous lawful nonimmigrant status under INA section 245(c)(7), as noted
above.  Is there a way around this
problem? At first glance, we consider the possibility of using the exception
under INA section 245(k) which allows for those who have not continuously
maintained lawful nonimmigrant status to still take advantage of section 245
adjustment if they can demonstrate that they have been in unlawful status for
not more than 180 days since their last admission. We would do well to
remember, however, that 245(k) only works if the alien is “present in the
United States pursuant to a lawful admission.” 
Is parole an admission? Not according to INA section 101(a)(13)(B). So,
while retroactive PIP would help satisfy the 180 day requirement imposed by INA section 245(k)(2), it cannot substitute for the lawful admission demanded by section
245(k)(1). Even if an out of status or unlawfully present I-140 beneficiary who
had previously been admitted now received nunc
pro tunc
parole, the parole would replace the prior lawful admission. Such
a person would still not be eligible for INA section 245(k) benefits and,
having failed to continuously maintain valid nonimmigrant status,  would remain unable to adjust due to the
preclusive effect of section 245(c)(7). Similarly, an I-140 beneficiary who had entered
EWI and subsequently received retroactive parole would likewise not be able to
utilize 245(k) for precisely the same reason, the lack of a lawful admission. Still,
the grant of retroactive PIP should wipe out unlawful presence and the 3 and 10
year bars enabling this I-140 beneficiary to still receive an immigrant visa at
an overseas consular post without triggering the bars upon departure from the
US. Thus, while the beneficiary of an employment-based petition may not be able
to apply for adjustment of status, retroactive PIP would nevertheless be hugely
beneficial because, assuming PIP is considered a lawful status, it will wipe out
unlawful presence and will thus no longer trigger the bars upon the alien’s
departure from the US.



There are two ways to
achieve progress. Congress can change the law, which it persists in refusing to
do, or the President can interpret the existing law in new ways, which he has
done.  The holistic approach to parole
for which we argue is a prime example of this second approach. The term
“status” is not defined anywhere in the INA. 
By ordinary English usage, “parolee status” is a perfectly natural way
of describing someone who has been paroled. Parole is a lawful status in the
sense that, by virtue of the parole, it is lawful for the parolee to remain in
the United States, at least for the authorized period of time under prescribed
terms and conditions. We credit David Isaacson for suggesting that there are
other instances in the INA where lawful status does not automatically equate to
nonimmigrant status: for examples, asylum status under INA Section 208 and
refugee status under INA section 207 are lawful statuses, even though strictly
speaking, neither an asylee nor a refugee is a nonimmigrant according to the
INA Section 101(a)(15) definition of that term. The Executive can easily revise
the memo for military families to declare parole under INA  section 212(d)(5) a status  because it has already declared parole a
lawful status for NA 245(c)(2) purposes under 8 C.F.R. 245(d)(v), asylum a
lawful status under INA section 208, and refugee a lawful status under INA section
207.  See
8 C.F.R. 245.1(d)(iii)-(iv). In
all three cases, people are allowed into the United States in a capacity that
is nether legal permanent residence nor, strictly speaking, nonimmigrant.  True, INA section 101(a)(13)(B) does say that
parolees are not “admitted”, but is one who enters without admission and is
granted asylum under INA 208 ever been “admitted” per the statutory definition
of that term? Yet, such a person has a lawful status.



One of the biggest
contributors to the buildup of the undocumented population in the US has been
the 3 and 10 year bars.  Even though
people are beneficiaries of immigrant visa petitions, they do not wish to risk
travelling abroad and facing the 3 or 10 year bars, as well as trying to
overcome the bars by demonstrating extreme hardship to qualifying relatives,
which is a very high standard. Extending PIP to people who are in any event in
the pipeline for a green card would allow them adjust status in the US or process immigrant visas at consular posts, and
become lawful permanent residents. These people are already eligible for
permanent residence through approved I-130 and I-140 petitions, and PIP would
only facilitate their ability to apply for permanent residence in the US, or in
the case of I-140 beneficiaries by travelling overseas for consular processing
without incurring the 3 and 10 year bars. PIP would thus reduce the
undocumented population in the US without creating new categories of relief,
which Congress can and should do through reform immigration legislation.





 There is no doubt that the memo for military
families is a meaningful example of immigration remediation through executive
initiative. Yet, it is one step in what can and should be a much longer
journey. In the face on intractable congressional resistance, we urge the
President to take this next step.



This post originally appeared on The Insightful Immigration Blog on November 17, 2013.





About The Author




Gary Endelman is a Senior Counsel at FosterQuan, Houston, TX. His practice includes I-9 compliance and audits, E-Verify compliance, immigration issues related to mergers and acquisitions, employment-based nonimmigrant visas, B-1 OCS, permanent residence petitions for ability, outstanding researchers, PERM labor certification; naturalization, derivation and transmission of U.S. citizenship. Mr. Endelman graduated with a B.A. in History from the University of Virginia, a Ph.D. in United States History from the University of Delaware, and a J.D. from the University of Houston. From 1985 to 1995, he worked at one of the largest immigration firms in the country. From 1995 to 2011, he worked as the in-house immigration counsel for BP America Inc., a multinational energy company ranked as one of the top 5 largest companies in the world. Mr. Endelman is board certified in Immigration and Nationality Law by the State Bar of Texas, Board of Legal Specialization and Chair of the Examinations Committee in Immigration and Nationality Law for the Texas Board of Legal Specialization. He is a frequent national speaker and writer on immigration related topics including several columns and blogs on immigration law. He served as a senior editor of the national conference handbook published by AILA for ten years. In July 2005, Mr. Endelman testified before the United States Senate Judiciary Committee on comprehensive immigration reform. Please contact Gary Endelman at gendelman@fosterquan.com. The views expressed by Mr. Endelman in this article are his personally and not those of FosterQuan, LLP.


Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Member of Cyrus D. Mehta & Associates, PLLC in New York City. He is the current Chair of AILA's Ethics Committee and former Chair of AILA's Pro Bono Committee. He is also the former Chair of the Board of Trustees of the American Immigration Council (2004-06) and Chair of the Committee on Immigration and Nationality Law (2000-03) of the New York City Bar Association. He is a frequent speaker and writer on various immigration-related issues, including on administrative remedies and ethics, and is also an adjunct associate professor of Law at Brooklyn Law School, where he teaches a course entitled "Immigration and Work." Mr. Mehta received the AILA 2011 Michael Maggio Memorial Award for his outstanding efforts in providing pro bono representation in the immigration field.














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