by Grace Vensel and Emilie Gough 

On June 18, 2024, the Biden-Harris administration and the Department of Homeland Security (DHS) announced “Keeping Families Together”, an initiative to ensure that certain noncitizen spouses and children of U.S. citizens are able to apply for lawful permanent residence (a green card) without leaving the country.  On August 19th, 2024 U.S. Citizenship and Immigration Services (“USCIS”) will begin accepting parole-in-place applications under the initiative for certain eligible noncitizen spouses and step-children of U.S. citizens who have been continuously present in the U.S. for at least 10 years. 

Background

The Keeping Families Together initiative is one of many recent executive actions taken by the Biden-Harris administration to secure the border while promoting family unity within the U.S. immigration system. Earlier this summer, President Biden announced that he would be taking executive action in an effort to control unlawful and unsafe immigration practices at the Southern border.

Most recently, however, the Biden-Harris Administration and DHS announced the new initiative that will work to keep “multi-status families” together while noncitizens go through the process of becoming lawful permanent residents of the U.S. This will be done through "parole-in-place."

Parole refers to the process when those who would otherwise lack a lawful basis to enter and remain in the U.S. are allowed to temporarily enter and/or remain in the U.S. Sometimes called humanitarian parole, it must be determined that the beneficiary's entry would satisfy urgent humanitarian reasons or provide a significant public benefit in order to receive the discretionary parole. On the other hand, parole-in-place is a similar process but for those who are already in the U.S.

A grant of humanitarian parole or parole-in-place would mean that the beneficiary is now considered "inspected and paroled" into the U.S. This is important because once a beneficiary is considered inspected and paroled, they become eligible to apply for Adjustment of Status and apply for lawful permanent resident status without leaving the U.S. Parolees are also eligible to apply for work authorization. 

Even if parole expires or is revoked, the beneficiary will still be considered to have been inspected and paroled into the U.S. For that reason, those who are granted parole-in-place under Keeping Families Together will continue to be eligible for Adjustment of Status even if the program is later struck down in court or ended by a future presidential administration. 

A Solution for Undocumented Spouses and Children of USCs

Under current U.S. immigration law, U.S. citizens may apply for an immigrant visa on behalf of their “immediate relatives,” including non-citizen spouses and children/step-children.  Note - stepchildren are defined as children under the age of 18 at the time their noncitizen parent married a U.S. citizen. This generally allows noncitizen family members to obtain permanent residency, and subsequently to apply for U.S. citizenship after many years. However, this process can be difficult, time-consuming, and especially risky for noncitizens who first came to the U.S. without inspection at the border.

Those who have not been inspected and admitted must first leave the U.S., travel to a U.S. consulate abroad, and obtain a new immigrant visa to come back. The issue is that once an unauthorized noncitizen departs the U.S., they will likely be barred from re-entering the U.S. for up to ten years. This is due to 1996 Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) which imposed an entry bar of up to 10 years on those who had been unlawfully present in the U.S. for 365 days or more. The consequences of a bar like this can be understandably devastating, as it would separate noncitizens from their U.S. citizen family and community members for the better part of a decade. The only way around this is to apply for a waiver that would allow unauthorized noncitizens to receive their immigrant visa abroad and return to the U.S. as permanent residents. 

However, receiving a waiver is never guaranteed and they are currently taking almost 30 months to be processed – two and a half years. The American Immigration Council estimates that approximately 1.2 million individuals are currently married to U.S. citizens who do not have an immigration status themselves. This means that around 1.2 million U.S. citizens are unable to apply for an immigrant benefit that they are otherwise entitled to under federal law. If they do, their families face years of separation.

During President Biden's announcement, he stated that Keeping  Families Together is a “commonsense fix to streamline the process for obtaining legal status for immigrants married…to American citizens who live here and [have] lived here for a long time. For those wives or husbands and their children who have lived in America for a decade or more but are undocumented, this action will allow them to file the paperwork for legal status in the United States, allow[ing] them to work while they remain with their families in the United States.”

So, how does this new process work? 

Form I-131F – Application for Parole in Place for Certain Non-Citizen Spouses and Step-Children of U.S. Citizens

Starting on August 19, 2024, U.S. Citizenship and Immigration Services will begin accepting online applications using Form I-131F. USCIS has provided a filing guide to assist those who plan to apply. 

Who is eligible?

In order to be eligible under Keeping Families Together, applicants must:

1. Be physically present in the U.S. without admission or parole;
2. Have been continuously physically present in the U.S.:
   1. Since June 17, 2014 if seeking parole-in-place as the spouse of a U.S. citizen or 
   2. Since June 17, 2024 if seeking parole-in-place as the stepchild of a U.S. citizen
3. Have
   1. A legally valid marriage to a U.S. citizen as of June 17, 2024 if seeking parole-in-place as the spouse of a U.S. citizen or 
   2. A noncitizen 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 if seeking parole-in-place as the stepchild of a U.S. citizen
4. Not have any disqualifying criminal history, such as a serious offense like a felony, and;
5. Not pose a threat to national security and public safety 

Those who are in removal proceedings or have an order of removal may still qualify. 

Please note - a grant of parole-in-place is discretionary by USCIS on a case-by-case basis. Even if all criteria are met, USCIS may determine that favorable discretion is not warranted and the application can be denied. 

Applicants may submit additional evidence “demonstrating the significant public benefit or urgent humanitarian reasons that warrant granting you parole and evidence of any additional favorable discretionary factors that you would like us to consider, including any information that may be considered in overcoming a rebuttable presumption of ineligibility.” This means that not all cases that qualify will be automatically approved. We expect that USCIS will want to see as much documentation as is available, similar to submitting a hardship waiver, showing that there are compelling circumstances show that an applicant warrants favorable discretion. 

Applicants must submit their completed Form I-131F online via USCIS' website. The form can be found here. Current filing fees are $580. Each individual, including children, requesting parole-in-place must submit their own form. 

What happens next?

Once the Form I-131F has been submitted, applicants will be required to attend an appointment for biometrics (fingerprints, photographs, and a signature). 

If approved, parole will generally be granted for a period of up to 3 years. Parole may be terminated at any time upon notice at Department of Homeland Security's discretion under 8 CFR 212.5(e)(2)(i). Parolees may apply for a Social Security Number (SSN), work authorization, travel authorization*, and may begin the Adjustment of Status process if there is an approved I-130, I-140, or I-360 on their behalf. An approved parole-in-place does not change any of the requirements to apply for an be approved for Adjustment of Status. Rather, it only satisfies the inspected and paroled requirement. An approved parole-in-place does not guarantee an approved Adjustment of Status; all Adjustment of Status applicants must still satisfy all requirements. 

If denied, generally USCIS will not issue a Notice to Appear (NTA) or refer the case to U.S. Immigration and Customs Enforcement (ICE) for possible enforcement action unless DHS determines, in its discretion, that the applicant poses a threat to national security, public safety, or border security. This process does not preclude DHS from in its discretionary authority, taking enforcement actions in accordance with the INA and consistent with governing policies and practices, against noncitizens who may be eligible or who have pending requests for parole under this process.  

* NOTE - Travel outside of the United States, even with advance parole, may have severe immigration-related consequences, including with respect to potential inadmissibility or execution of an outstanding order of removal. Parole into the U.S. after travel is not guaranteed even if you have been granted advance parole prior to leaving the country. You are still subject to immigration inspection at a U.S. port of entry to determine whether you may be paroled into the United States and whether you are eligible for the immigration status you seek. We recommend consulting with an immigration attorney prior to traveling outside of the U.S. 

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UPDATE: 8/28/24

From the USCIS website:

On August 26, 2024, the United States District Court for the Eastern District of Texas, in Texas v. Department of Homeland Security, Case Number 24-cv-306 administratively stayed DHS from granting parole in place under Keeping Families Together for 14 days; the District Court might extend the period of this administrative stay.

While the administrative stay is in place, we will:

• • Not grant any pending parole in place requests under Keeping Families Together.
  • Continue to accept filings of Form I-131F, Application for Parole in Place for Certain Noncitizen Spouses and Stepchildren of U.S. Citizens.

The District Court's administrative stay order does not affect any applications that were approved before the administrative stay order was issued.

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Contact the Law Offices of James D. Eiss today to schedule a consultation.