In June 2024, a new Parole-in-Place (“PIP”) process for undocumented spouses and stepchildren of U.S. citizens was announced.[1] Under this program, noncitizens can apply for adjustment of status (I-485) to become lawful permanent residents (green card holders) without the necessity of leaving the United States for consular processing abroad.[2]
Background:
Foreign nationals married to U.S. citizens can usually apply for lawful permanent resident status (a green card) if they entered the United States legally—even if the noncitizen overstayed their visa, as that can be waived.[3] However, if the foreign national was not properly inspected, admitted, or paroled, the foreign national would have to leave the United States and first seek an immigrant visa at a U.S. embassy or consulate abroad.[4]
This can cause the U.S. citizen and their family member to be apart for months or years while going through a foreign embassy or consulate for visa processing.[5]
The Process:
The “Parole-in-Place” program, also called “Keeping Families Together,” allows foreign nationals not properly admitted to the United States to apply for adjustment of status without leaving the United States.[6] To be eligible, the foreign citizen must, as of June 17, 2024:
(1) have been continuously present in the United States for at least ten years;
(2) have a legally valid marriage to a U.S. citizen;
(3) submit biometrics and undergo background checks to confirm the noncitizen:
(i) has no prior felonies, and
(ii) is no threat to public safety or national security; and
(4) has positive discretionary factors outweighing negative discretionary factors.[7]
The fourth element can include any positive factors.[8] Some examples are:
- Community ties;
- Advanced or young age;
- Length of presence in the United States;
- Being a parent or caregiver of a U.S. child or elderly parent;
- Being a caregiver for an individual with disabilities;
- Requiring care or treatment in the United States;
- Being a victim or witness to a crime or civil/labor rights violation;
- Impact on other family members; and
- Status, or that of their U.S. citizen spouse, as a current or former member of the U.S. military.
Negative factors must be considered. Consult a qualified immigration lawyer if you have negative factors in your past that concern you.
Stepchildren of a U.S. citizen can also apply if they meet the same factors, even if the parent and stepparent divorced, or the stepparent died.[9] The stepparent must have entered into a legally valid marriage with a U.S. citizen on or before June 17, 2024, which must be before the child’s 18th birthday.[10]
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.[11] The noncitizen may then apply for authorization to work in the United States (I-765) and apply for adjustment of status (I-130 and I-485), all from inside the United States.[12]
Pause of the PIP Process:
On August 26, 2024, the Eastern District of Texas granted an administrative stay on PIP after sixteen states challenged its implementation.[13] Eleven parties who had applied for PIP motioned to intervene in the Eastern Court, which was denied. They appealed, and the Fifth Circuit entered an administrative stay of the Eastern District’s proceedings until the Fifth Circuit’s hearing on October 10, 2024.[14]
On September 19, 2024, the eleven individuals and the Coalition for Humane Immigration Rights moved to vacate the administrative stay.[15] They argued that the appeal concerned an issue ancillary to the stay, that the appellate stay did not consider the factors for injunctive relief, and that it would “impermissibly insulate the district court’s initial order from appellate review.”[16]
The U.S. Department of Justice separately moved to vacate the stay.[17] The Department of Justice argued that the plaintiffs did not prove they had standing, request the stay, or show they would be likely to succeed on the merits or would suffer irreparable harm.[18] The Department of Justice further argued that the PIP process was legal because “Congress vested discretionary unreviewable parole authority in the Secretary, the Secretary established a process for exercising that authority, and the Secretary determined that using the authority would generally result in significant public benefit along multiple fronts.”[19]
The challenging states countered that “[t]he Court has ample authority to issue an administrative stay under the All Writs Act[20] and its inherent authority.”[21] They argued the administrative stay preserved the appellants’ asserted rights as intervenors—the case likely would have gone to trial without the intervenors absent the stay—and the movants improperly asserted questions of standing and remedies to a collateral order appeal regarding intervention.[22]
What that Means for You:
This means that first, the Fifth Circuit—a federal appellate court—will decide whether certain parties can join the lawsuit to defend the PIP program, and then the Eastern District Court of Texas—the lower court—will decide whether the PIP process is lawful. Regardless of how the Eastern District Court decides, that decision will likely be appealed to the Fifth Circuit and possibly even to the U.S. Supreme Court.
For now, you can apply for the PIP process and reserve your spot in line; however, it is not clear if it will be granted.[23]
[1] https://www.ilrc.org/resources/latest-on-parole-in-place
[2] https://www.uscis.gov/keepingfamiliestogether
[3] INA sec. 245(a), 8 U.S.C 1255(a).
[4] Implementation of Keeping Families Together, 89 Fed. Reg. 67,459, 67,460 (Aug. 20, 2024)
[5] Id.
[6] https://www.uscis.gov/keepingfamiliestogether
[7] Implementation of Keeping Families Together, 89 Fed. Reg. at 67461.
[8] See id. at 67472 (“USCIS may consider any relevant fact in the discretionary analysis.”).
[9] Id. at 67473.
[10] Id. at 67469.
[11] Id. at 67473.
[12] Id. at 67462 (citing 8 C.F.R. § 274a.12(c)(11)).
[13] Texas v. U.S. Dep’t of Homeland Sec., No. 6:24-cv-00306, 2024 U.S. Dist. LEXIS 153604, at *7–8 (E.D. Tex. 2024).
[14] https://www.aila.org/aila-files/D5F32105-541C-4524-AF8C-330C52C1E413/24082303d.pdf
[15] Mot. to Vacate Extension of Dist. Ct.’s “Administrative Stay”, Texas v. Dep’t of Homeland Sec., No. 24-40571 (5th Cir. Sept. 19, 2024).
[16] Id. at 5.
[17] Mot. to Vacate Extension of Dist. Ct. Stay, Texas v. Dep’t of Homeland Sec., No. 24-40571 (5th Cir. Sept. 19, 2024).
[18] Id. at 4.
[19] Id. at 5.
[20] 28 U.S.C. § 1651.
[21] Opp. to Mots. To Vacate Admin. Stay, at 6, Texas v. Dep’t of Homeland Sec., No. 24-40571 (5th Cir. Sept. 30, 2024).
[22] Id. at 7.
[23] https://www.uscis.gov/keepingfamiliestogether.
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