Implementation of Keeping Families Together

Federal RegisterAug 20, 2024

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DEPARTMENT OF HOMELAND SECURITY

[CIS No. 2779-24; DHS Docket No. USCIS-2024-0010]

RIN 1615-ZC09

Implementation of Keeping Families Together

AGENCY:

Department of Homeland Security.

ACTION:

Notice of implementation of the Keeping Families Together process.

SUMMARY:

This notice announces the U.S. Department of Homeland Security's (DHS) implementation of the Keeping Families Together process for certain noncitizen spouses and stepchildren of U.S. citizens who are present in the United States without admission or parole to request parole in place under existing statutory authority. Granting parole in place, on a case-by-case basis, to eligible noncitizens under this process will achieve the significant public benefit of promoting the unity and stability of families, increasing the economic prosperity of American communities, strengthening diplomatic relationships with partner countries in the region, reducing strain on limited U.S. government resources, and furthering national security, public safety, and border security objectives.

DATES:

DHS will begin using the Form I-131F, Application for Parole in Place for Certain Noncitizen Spouses and Stepchildren of U.S. Citizens, for this process on August 19, 2024.

FOR FURTHER INFORMATION CONTACT:

Rená Cutlip-Mason, Chief, Humanitarian Affairs Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, by mail at 5900 Capital Gateway Drive, Camp Springs, MD 20746, or by phone at 800-375-5283.

SUPPLEMENTARY INFORMATION:

I. Background

Family unity is a bedrock objective of the U.S. immigration system. Nearly 60 years ago, the Immigration and Nationality Act of 1965, a foundation of modern U.S. immigration law, enshrined as a core principle the importance of promoting the ability of U.S. citizens to unify with their relatives—a principle that endures to this day.

Yet, amidst growing demands and challenges, including chronic underfunding of our immigration

and visa processing backlogs compounded by the COVID-19 pandemic, our

immigration system has often been challenged in its ability to fully achieve this core principle. U.S. citizens and their noncitizen family members have in many cases faced lengthy processing backlogs and potential years-long separation to access immigration benefits intended by Congress to promote family unity.

Public Law 89-236 (1965).

For example, in the Fiscal Year (FY) 2024 President's Budget, USCIS requested $865 million in appropriated funding, but Congress only provided $281 million.

See

Department of Homeland Security U.S. Citizenship and Immigration Services Budget Overview, Fiscal Year 2024 Congressional Justification, available at

https://www.dhs.gov/sites//default/files//2023-03/U.S.%20CITIZENSHIP/%20AND%20IMMIGRATION%20SERVICES_Remediated.pdf

(last visited July 16, 2024); Department of Homeland Security Appropriations Act, 2024, Public Law 118-47, div. C (2024); Department of Homeland Security U.S. Citizenship and Immigration Services Budget Overview, Fiscal Year 2025 Congressional Justification, available at

https://www.dhs.gov/sites/default/files/2024-04/2024_0325_us_citizenship_and_immigration_services.pdf

(last visited July 16, 2024). The February 2024 Bipartisan Border Agreement would have provided $20 billion in funding for border management, including $4 billion to USCIS.

DHS estimates that there are approximately 765,000 noncitizens in the United States who are married to U.S. citizens and lack lawful immigration status.

Estimates indicate that the median time these noncitizens have been in the United States is 20 years, and they collectively live with more than 2.5 million U.S. citizen family members, raising and caring for more than 1.6 million U.S. citizen children.

While U.S. immigration law provides noncitizens who are beneficiaries of approved immigrant visa petitions

filed by their U.S. citizen spouses the opportunity to apply for adjustment of status to that of a lawful permanent resident (LPR) while remaining in the United States, there are certain requirements to adjust status that prevent many noncitizens from availing themselves of this benefit.

In particular, to apply for LPR status while in the United States, an applicant generally must have been “inspected and admitted or paroled” into the United States.

U.S. Dep't of Homeland Security, Office of Homeland Security Statistics (OHSS) analysis of OHSS Estimates of the Unauthorized Immigrant Population Residing in the United States: Jan. 2018-Jan. 2022 (“OHSS Analysis”), tbl. 3.

Id.

tbls. 4, 5. Estimated data shows that the median amount of time the entire population of noncitizen spouses of U.S. citizens has been in the United States is 20 years; the median time the PIP-eligible population of noncitizen spouses of U.S. citizens (where the noncitizen spouses have been in the United States for at least 10 years) has been in the United States is 23 years.

This is filed on Form I-130, Petition for Alien Relative.

Adjustment of status is the process by which certain noncitizens may seek LPR status while remaining in the United States, as opposed to consular processing, the process by which certain noncitizens seek an immigrant visa at a United States embassy or consulate abroad and then are admitted to the United States as an LPR at a port of entry.

See

INA sec. 245(a), 8 U.S.C. 1255(a);

cf.

INA secs. 221-222, 8 U.S.C. 1201-1202 (immigrant visa applications).

INA sec. 245(a), 8 U.S.C 1255(a).

DHS estimates that more than two-thirds of noncitizens without lawful immigration status who are married to U.S. citizens

are present in the United States without admission or parole, and as a result, are generally not eligible for adjustment of status.

They must therefore depart the United States and seek an immigrant visa at a U.S. embassy or consulate abroad. However, if they choose to depart the United States, they face uncertainty about whether they will be granted an immigrant visa and be able to return to the United States.

The noncitizen also must remain abroad while waiting for their immigrant visa application to be processed at a U.S. embassy or consulate and any necessary waiver applications to be processed by U.S. Citizenship and Immigration Services (USCIS), and as a result, they may be separated from their U.S. citizen family members for months or years.

The length and uncertainty of the process, along with the prospect of either separating from their U.S. citizen family members or uprooting them to travel abroad creates a disincentive and makes it difficult for noncitizens to pursue LPR status despite their eligibility to apply.

OHSS Analysis,

supra

note 3, tbl. 3.

INA sec. 245(a), 8 U.S.C. 1255(a).

For most of these noncitizens, their departure to pursue consular processing and seeking admission through the application of an immigrant visa makes them inadmissible, and seeking of admission through the application for an immigrant visa within three years from their departure (if they accrued more than 180 days but less than one year of unlawful presence in the United States during a single stay), or within ten years from their departure or removal (of departure or removal (if they accrued one year or more of unlawful presence in the United States during a single stay)), will make them inadmissible under INA section 212(a)(9)(B)(i), 8 U.S.C. 1182(a)(9)(B)(i).

See, e.g., Matter of Duarte-Gonzalez,

28 I. & N. Dec. 688, 689-90 (BIA 2023);

Matter of Rodarte-Roman,

23 I. & N. Dec. 905, 908-10 (BIA 2006) (holding that the 3-year and 10-year unlawful presence bars are not triggered unless and until the noncitizen departs from the United States). This ground of inadmissibility may be waived, but approval of such a waiver is discretionary and requires applicants to “establish [ ] . . . that the refusal of [the applicant's] admission . . . would result in extreme hardship to the citizen or [LPR] spouse or parent” of the applicant. INA sec. 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v).

As discussed in greater detail in this notice, the provisional waiver process through the Form I-601A, Application for Provisional Unlawful Presence Waiver, permits certain noncitizens to apply for a provisional waiver of the unlawful presence grounds of inadmissibility under INA section 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v), prior to their departure from the United States. While an important mechanism, the Form I-601A provisional waiver process has become significantly backlogged in recent years, still requires the noncitizen to depart and remain separated from their U.S. citizen relatives during consular processing, and does not provide a guarantee that an immigrant visa will ultimately be granted.

See

8 CFR 212.7(e) (describing the provisional unlawful presence waiver process).

Recognizing the harms that families and communities face every day as a result of flaws in the U.S. immigration system, President Joseph R. Biden in 2021 directed DHS and other agencies to “identify barriers that impede access to immigration benefits and fair, efficient adjudications of these benefits and make recommendations on how to remove these barriers, as appropriate and consistent with applicable law.”

In response to the President's directive, DHS and its immigration components, including USCIS, have taken several steps to promote accessibility and increase efficiency in the immigration system.

Exec. Order No. 14012,

Restoring Faith in Our Legal Immigration System and Strengthening Integration and Inclusion Efforts for New Americans,

86 FR 8277 (Feb. 5, 2021).

See

USCIS, Completing an Unprecedented 10 Million Immigration Cases in Fiscal Year 2023, USCIS Reduced Its Backlog for the First Time in Over a Decade (Feb. 9, 2024),

https://www.uscis.gov/EOY2023;

USCIS Fiscal Year 2022 Progress Report (Dec. 2022),

www.uscis.gov/sites/default/files/document/reports/OPA_ProgressReport.pdf.

On June 18, 2024, President Biden announced that DHS would take action to preserve the unity of U.S. citizens and their noncitizen spouses and noncitizen stepchildren who currently cannot access LPR status without first departing the United States.

In furtherance of the President's directive, DHS is now establishing a process, through its existing discretionary parole authority under INA section 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A),

for DHS to consider, on a case-by-case basis, parole in place requests filed by certain noncitizen spouses and stepchildren of U.S. citizens. If granted parole in place, these noncitizens, if otherwise eligible, could apply for adjustment of status to that of an LPR, rather than having to depart the United States to pursue an immigrant visa, as the parole in place would satisfy the “inspected and admitted or paroled” requirement.

The White House,

FACT SHEET: President Biden Announces New Actions to Keep Families Together,

June 18, 2024, available at

https://www.whitehouse.gov/briefing-room/statements-releases/2024/06/18/fact-sheet-president-biden-announces-new-actions-to-keep-families-together/.

INA sec. 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A) (“The [Secretary] may . . . in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States . . .”).

See

Section II.B. of this notice for additional information on parole in relation to adjustment of status.

This process does not change or eliminate the eligibility criteria for adjustment of status to that of an LPR. Noncitizens who are granted parole in place under this process will still have to satisfy all other statutory and regulatory requirements when applying to adjust status to that of an LPR, including that they have an approved immigrant visa petition based on a bona fide relationship to a U.S. citizen, are admissible to the United States, and merit a grant of adjustment of status as

a matter of discretion.

Eligibility for a family-based immigrant visa petition (Form I-130, Petition for Alien Relative),

and application to adjust status to that of an LPR (Form I-485, Application to Register Permanent Residence or Adjust Status), will be determined in a distinct and separate process from the parole in place adjudication.

See

INA sec. 245(a), (c), 8 U.S.C. 1255(a), (c); 8 CFR part 245.

And in the case of certain widows or widowers, where eligible as described in this notice, Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.

This process will be available to certain noncitizen spouses of U.S. citizens who are present in the United States without admission or parole; who have been continuously physically present in the United States for a minimum of ten years as of June 17, 2024 (that is, continuously physically present since June 17, 2014 and through the date of filing the request for parole); who have a legally valid marriage to a U.S. citizen as of June 17, 2024; who have no disqualifying criminal history;

who do not pose a threat to national security, public safety, or border security; and who merit parole in place as a matter of discretion. Certain noncitizen stepchildren of U.S. citizens may also request parole in place under this process, provided that they have been continuously physically present in the United States without admission or parole since June 17, 2024 through the date of filing, have no disqualifying criminal history and do not pose a threat to national security or public safety, meet the INA's definition and requirements of a stepchild

of a U.S. citizen, and merit parole in place as a matter of discretion.

Noncitizens who have been convicted of serious offenses, such as felonies, will be ineligible for this process.

See

Section V.A. of this notice for additional detail on disqualifying criminal history.

See

INA sec. 101(b)(1), 8 U.S.C. 1101(b)(1).

Only noncitizens who are “applicants for admission” to the United States may be eligible for parole.

Noncitizens who lack lawful status but were inspected and admitted to the United States are not eligible for parole.

This parole in place process is available specifically to noncitizens who are present in the United States without admission or parole and who remain applicants for admission. Requests for parole in place under this process will be considered on a case-by-case basis in the exercise of discretion. Positive and negative discretionary factors will be considered when determining whether to grant parole in place to a noncitizen, based on significant public benefit or urgent humanitarian reasons. DHS estimates that 500,000 noncitizen spouses and 50,000 noncitizen stepchildren of U.S. citizens may meet the requirements to request parole in place under this process.

See

INA sec. 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A);

see also

INA sec. 235(a)(1), 8 U.S.C. 1225(a)(1) (“An alien present in the United States who has not been admitted or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters) shall be deemed for purposes of this chapter an applicant for admission.”).

Noncitizens who are immediate relatives of a U.S. citizen and were admitted to the United States on a valid nonimmigrant visa but have remained in the United States beyond the period of stay authorized will generally meet the “inspected and admitted or paroled” requirement for adjustment of status without the need for parole in place.

See

INA sec. 245(a), 8 U.S.C. 1255(a); INA sec. 245(c)(2), 8 U.S.C. 1255(c)(2). Similarly, noncitizens who were paroled into the United States on or after their last arrival would also meet this requirement.

OHSS Analysis,

supra

note 3, tbl. 3.

As described elsewhere in this

Federal Register

notice (notice), the authority to parole applicants for admission “in place”—

i.e.,

while the noncitizen is present within the United States without having been admitted—is consistent with DHS's longstanding interpretation of its authorities, and DHS continues to believe that it reflects the best reading of the statute.

The parole authority has been used for over 15 years in the specific context of preserving family unity for military families.

In 2010, USCIS provided guidance to its officers on considering parole in place requests submitted by noncitizen family members of U.S. military service members, which enables them to adjust status without leaving the United States,

an authority Congress legislatively reaffirmed in 2019.

Congress has also expressed support in legislation for the use of DHS's parole authority in certain instances as a discretionary tool where justified for urgent humanitarian reasons or significant public benefit.

See, e.g.,

Memorandum from Paul W. Virtue, INS General Counsel, to INS officials,

Authority to Parole Applicants for Admission Who Are Not Also Arriving Aliens,

Legal Op. No. 98-10, 1998 WL 1806685 (Aug. 21, 1998),

superseded in part on other grounds by

Memorandum from Gus P. Coldebella, DHS General Counsel, to DHS officials,

Clarification of the Relation Between Release under Section 236 and Parole under Section 212(d)(5) of the Immigration and Nationality Act

(Sept. 28, 2007) (“Coldebella Memo”), available at

https://www.uscis.gov/sites/default/files/document/legal-docs/Coldebella_Memo.pdf; see also, e.g., Ortega-Cervantes

Gonzales,

501 F.3d 1111, 1118 (9th Cir. 2007) (discussing 1998 INS General Counsel Memo and 1999 INS Cuban parole policy, and stating that “[w]e see nothing [in the INA] that would preclude the government from paroling . . . into the United States under § 1182(d)(5)(A)” noncitizens “who are currently present in the United States but who were not inspected upon arrival at a port of entry” and that “[t]he [INS] General Counsel's memorandum is consistent with our conclusion . . . that there is no per se bar on paroling unlawful entrants into the United States pursuant to § 1182(d)(5)(A)”).

Immigration Needs of America's Fighting Men and Women, Hearing Before the Subcomm. on Immigr., Citizenship, Refugees, Border Sec., & Int'l L. of the Comm. on the Judiciary, H.R.,

110th Cong. 15 (2008) (testimony of Margaret Stock, Attorney and Lieutenant Colonel, Military Police Corps, United States Army Reserve).

While the USCIS policy memorandum articulating the use of parole in place for military family members was issued in 2013, as a matter of practice, USCIS has been issuing parole in place for members of this population since 2010. Making this process available only to certain spouses and stepchildren of U.S. citizens is consistent with past sparing uses of parole in place.

See id.

DHS continues to view use of parole in place as consistent with the best reading of the statute, as described in section II in this notice. For reasons discussed throughout this notice, making it available to this population also is a better practice than retaining the status quo.

See

USCIS Policy Memorandum, PM-602-0091,

Parole of Spouses, Children and Parents of Active Duty Members of the U.S. Armed Forces, the Selected Reserve of the Ready Reserve, and Former Members of the U.S. Armed Forces or Selected Reserve of the Ready Reserve and the Effect of Parole on Inadmissibility under Immigration and Nationality Act sec. 212(a)(6)(A)(i)

(Nov. 15, 2013) (“USCIS Military Parole in Place Memorandum”),

available at https://www.uscis.gov/sites/default/files/document/memos/2013-1115_Parole_in_Place_Memo_.pdf, superseded in part by

USCIS Policy Memorandum, PM-602-1104,

Discretionary Options for Designated Spouses, Parents, and Sons and Daughters of Certain Military Personnel, Veterans, and Enlistees

(Nov. 23, 2016),

available at https://www.uscis.gov/sites/default/files/document/memos/PIP-DA_Military_Final_112316.pdf.

See

National Defense Authorization Act for Fiscal Year 2020, Public Law 116-92, sec. 1758 (2019) (8 U.S.C. 1182 note) (NDAA 2020) (“the importance of the parole in place authority of the Secretary of Homeland Security is reaffirmed”).

See, e.g.,

Foreign Operations, Export Financing, and Related Programs Appropriations Act of 1990, Public Law 101-167, sec. 599E (8 U.S.C. 1255 note) (authorizing granting permanent residence to parolees from the Soviet Union, Vietnam, Laos, and Cambodia); Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Public Law 104-208, div. C, sec. 646 (8 U.S.C. 1255 note) (providing for adjustment of status for noncitizens from Poland and Hungary who had been denied refugee status but who had been “inspected and granted parole into the United States”); NDAA 2020, sec. 1758,

supra

note 27 (expressing congressional support for an ongoing parole program for relatives of U.S. military members and considering in each case-by-case determination whether parole would advance family unity that would constitute a significant public benefit); Extending Government Funding and Delivering Emergency Assistance Act of 2021, Public Law 117-43, sec. 2502 (8 U.S.C. 1101 note) (providing refugee benefits to Afghans paroled under INA section 1182(d)(5) and funds to support those benefits); Ukraine Supplemental Appropriations Act of 2022, Public Law 117-128, sec. 401 (8 U.S.C. 1101 note) (providing benefits to Ukrainians paroled under INA sec. 212(d)(5), 8 U.S.C. 1182(d)(5) and funds to support those benefits).

As explained more fully in Section IV of this notice, the Secretary of Homeland Security's (“Secretary”) exercise of the parole authority in this manner will provide a significant public benefit to the United States, including to

the impacted U.S. citizens, noncitizens, their families, and their communities at large.

First,

it will promote family unity by enabling U.S. citizen spouses and children to remain with their noncitizen family members while their noncitizen family members apply for adjustment of status to that of an LPR, thus promoting stability and preventing avoidable disruptions to these families.

Second,

it will advance U.S. economic and labor interests by enabling paroled noncitizens to work lawfully in the United States and contribute economically to their families and communities.

Third,

it will further critical U.S. diplomatic interests and U.S. foreign policy objectives of managing migration, increasing economic stability, and fostering security in the United States and in partner countries in the region.

Fourth,

it will preserve limited resources across U.S. government agencies that may otherwise be expended on consular processing and removal proceedings.

Fifth,

it will further national security, public safety, and border security objectives by encouraging noncitizens to provide information for background and security checks.

See

Economic Analysis section in this notice.

II. Parole Authority and Existing Family Unity Parole Processes

A. Parole Authority

The Secretary, and those other officials as designated by the Secretary,

have the discretionary authority under INA section 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A), to parole any applicant for admission “into the United States temporarily under such conditions as [the Secretary] may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit.”

See

Delegation to the Bureau of Citizenship and Immigration Services (Delegation No. 0150.1, Sec. II(O)) (June 5, 2003) (vesting parole authority in USCIS through its Director and subordinate officers).

DHS's parole authority extends to noncitizens inside the United States who have not been “admitted” as defined in the INA through a practice known as “parole in place.”

Parole is available to an “applicant for admission,” which the INA defines in relevant part as “[a]n alien present in the United States who has not been admitted or who arrives in the United States.”

Because the INA creates a distinct meaning for “admission,” noncitizens who have entered the United States without having been “admitted” are still considered “applicants for admission,” even though they are physically inside the United States, and may be paroled in accordance with INA section 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A). Longstanding DHS legal opinions have affirmed the availability of parole in place under U.S. immigration law, as discussed elsewhere in this notice.

See

INA sec. 101(a)(13)(A), 8 U.S.C. 1101(a)(13)(A),) (defining the terms “admission” and “admitted” as “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer”); INA sec. 212(d)(5), 8 U.S.C. 1182(d)(5);

see also

USCIS Policy Manual, Volume 7, Adjustment of Status, Part B, 245(a) Adjustment, Chapter 2, Eligibility Requirements, Section 3, Parole [7 USCIS PM B.2 (A)(3)] (“Parole in Place: Parole of Certain Noncitizens Present Without Admission or Parole”), available at

https://www.uscis.gov/policy-manual/volume-7-part-b-chapter-2

(last updated July 16, 2024).

See

INA sec. 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A); INA sec. 235(a)(1), 8 U.S.C. 1225(a)(1) (“An alien present in the United States who has not been admitted or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters) shall be deemed for purposes of [the INA] an applicant for admission. A noncitizen placed in removal proceedings pursuant to INA sec. 240, 8 U.S.C. 1229a, may also be an applicant for admission, and such an individual could be considered for this parole in place process even if released from custody under INA sec. 236(a), 8 U.S.C. 1226(a), as long as they have not been admitted.

See

INA sec. 240(a)(2), 8 U.S.C. 1229a(a)(2) (“An alien placed in proceedings under this section may be charged with any applicable ground of inadmissibility under section 1182(a) of this title. . .”).

See supra

note 24 and Section II.C of this notice.

Parole is neither an admission of the noncitizen to the United States nor a determination of admissibility, and a parolee remains an applicant for admission during the period of parole in the United States.

DHS sets the duration of the period of parole based on the purpose for granting the parole request and may also impose conditions on parole.

DHS may terminate parole in its discretion at any time.

By regulation, parolees may apply for and be granted employment authorization to work lawfully in the United States during their period of parole.

While in a period of parole, noncitizens do not accrue unlawful presence for purposes of inadmissibility under INA sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I), 8 U.S.C. 1182(a)(9)(B)(i) and 1182(a)(9)(C)(i)(I).

INA sec. 101(a)(13)(B), 8 U.S.C. 1101(a)(13)(B); INA sec. 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A).

INA sec. 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A).

8 CFR 212.5(e) (providing that a noncitizen's parole may terminate automatically or upon written notice). In addition, neither the denial of a parole in place request nor a parole termination determination is subject to judicial review.

See

INA sec. 242(a)(2)(B)(ii), 8 U.S.C. 1252(a)(2)(B)(ii);

Bolante

Keisler,

506 F.3d 618, 621 (7th Cir. 2007);

Samirah

O'Connell,

335 F.3d 545, 549 (7th Cir. 2003);

see also

U.S. Dep't of Health and Human Services, Office of Refugee Resettlement, Benefits for Cuban/Haitian Entrants (Fact Sheet), available at

https://www.acf.hhs.gov/orr/fact-sheet/benefits-cuban/haitian-entrants.

Eventually, with LPR status, these parolees could potentially become eligible for other public benefits, but their uptake of these public benefits would likely be curtailed by their access to lawful employment and offset by the increased taxes they would pay as formal contributors to the economy. Rouse et al.,

supra

note 93. However, as discussed elsewhere in this section, DHS estimates that only 13 percent of noncitizens likely to access this parole in place process are nationals of Western Hemisphere countries other than Mexico, Guatemala, Honduras, or El Salvador.

Advancing Diplomatic Relationships and Key Foreign Policy Objectives of the United States

This process responds to the requests and interests of key foreign partners and aligns with the U.S. government's broader foreign policy objectives to collaboratively manage migration and promote economic stability in countries throughout the Western Hemisphere.

The significant majority of noncitizens who stand to benefit from this process are nationals of Western Hemisphere countries that serve as key migration management partners of the United States. An estimated 64 percent of the noncitizens who are likely to access this process are Mexican nationals, while 20 percent are from Guatemala, Honduras, and El Salvador.

109

An additional 13 percent are nationals of other Western Hemisphere countries.

110

109

OHSS Analysis,

supra

note 3, tbl. 3.

110

Id.

The United States continues to engage with partner countries in the Western Hemisphere to manage extraordinary levels of migration. These efforts include addressing the root causes of migration, expanding access to lawful pathways, and disrupting human smuggling, trafficking, and criminal networks that prey on the most vulnerable individuals. As part of the strategy to reduce irregular migration and ensure migrants have access to protection, services and employment, the United States has worked with its partners to ensure migrants in other countries have access to regularization programs.

For example, as part of a multilateral process involving 21 countries, in May 2024, Ecuador announced a new regularization program under which certain migrants are able to obtain a temporary resident permit, while others are able to apply for a temporary visa.

111

Colombia has given 10-year temporary protected status to approximately 2.5 million Venezuelans,

112

and announced a plan for parents and legal guardians of children with such status to obtain special permits. Colombia also announced a new special permanent visa for Latin American and Caribbean migrants without regular status in the country. Similarly, Costa Rica committed to expand its Special Temporary Category regularization pathway and reduce barriers to access with continued assistance from the international community.

113

111

The White House,

Fact Sheet: Third Ministerial Meeting on the Los Angeles Declaration on Migration and Protection in Guatemala

(May 7, 2024) (“White House Fact Sheet”), available at

https://www.whitehouse.gov/briefing-room/statements-releases/2024/05/07/fact-sheet-third-ministerial-meeting-on-the-los-angeles-declarationon-migration-and-protection-in-guatemala/.

112

See

U.S. Dep't of State, Secretary Antony J. Blinken and Secretary of Homeland Security Alejandro Mayorkas at a Joint Press Availability (Apr. 27, 2023), available at

https://www.state.gov/secretary-antony-j-blinken-and-secretary-of-homeland-security-alejandro-mayorkas-at-a-joint-press-availability.

113

White House Fact Sheet,

supra

note 111.

This parole in place process demonstrates U.S. partnership and commitment to the shared goals of addressing migration through the Western Hemisphere. Partner countries have requested regularization of their respective nationals who have lived in the United States for long periods of time without lawful status.

114

For

example, the Government of Mexico has urged the United States to regularize Mexican nationals who are long-term residents of the United States.

115

Further, the Government of Colombia has requested that the United States regularize certain Colombian nationals living in the United States. Both Mexico and Colombia have partnered closely with the United States to address irregular migration.

116

This parole in place process will therefore strengthen the United States' ability to cooperate and engage with these and other key partners in the region. This cooperation and engagement extends to matters of national and border security as well.

114

The White House,

Mexico-U.S. Joint Communique: Mexico and the United States Reaffirm Their Shared Commitments on an Orderly, Humane and Regular Migration

(Dec. 28, 2023), available at

https://www.whitehouse.gov/briefing-room/statements-releases/2023/12/28/mexico-u-s-

joint-communique-mexico-and-the-united-states-reaffirm-their-shared-commitments-on-an-orderly-humane-and-regular-migration/.

115

See, e.g.,

Government of Mexico,

En diálogo con su homólogo estadounidense, presidente López Obrador ratifica propuesta en materia migratoria (In Dialogue with His American Counterpart, President López Obrador Ratifies Proposal on Immigration Matters)

(Feb. 3, 2024), available at

https://www.gob.mx/presidencia/prensa/en-dialogo-con-su-homologo-estadounidense-presidente-lopez-obrador-ratifica-propuesta-en-materia-migratoria.

116

See, e.g.,

Department of State,

U.S.-Colombia Joint Commitment to Address the Hemispheric Challenge of Irregular Migration

(June 4, 2023), available at

https://www.state.gov/u-s-colombia-joint-commitment-to-address-the-hemispheric-challenge-of-irregular-migration/; see also

Department of State,

U.S. Relations with Mexico

(Sept. 13, 2023), available at

https://www.state.gov/u-s-relations-with-mexico/.

This process will also further the key foreign policy objectives of increasing economic stability in countries that are major sources of migration to the United States. By providing certain noncitizen long-term residents of the United States the ability to access employment authorization and adjustment of status, this process will enhance their ability to send remittances to family members in their countries of origin, promoting stability and reducing incentives for those family members or others to irregularly migrate to the United States.

117

Remittances play a pivotal role in origin countries' economies in the Western Hemisphere. In 2023, remittances received by the countries of Latin America and the Caribbean reached $154 billion.

118

Remittances are crucial to low- and middle-income countries, as they can improve a country's ability to repay debt and national banks can use future inflows as collateral to lower the costs of international borrowing.

119

117

See, e.g.,

Jose Ivan Rodriguez-Sanchez,

An Economic Lifeline? How Remittances from the U.S. Impact Mexico's Economy,

Baker Institute of Rice University (Nov. 13, 2023), available at

https://www.bakerinstitute.org/research/economic-lifeline-how-remittances-us-impact-mexicos-economy.

118

Jeremy Harris and René Maldonado,

Migrant wages and remittances to Latin America and the Caribbean in 2023,

Migration Unpacked, Inter-American Development Bank (May 15, 2024), available at

https://blogs.iadb.org/migracion/en/migrant-wages-and-remittances-to-latin-america-and-the-caribbean-in-2023/.

119

See id.

Reducing Strain on Limited U.S. Government Resources

The process will also provide the significant public benefit of preserving and more effectively using limited U.S. government resources for DHS (including USCIS and ICE), DOS, and DOJ (EOIR). USCIS anticipates that this process will ultimately reduce pressure on the overlapping, lengthier, and more complex Form I-601A, Application for Provisional Unlawful Presence Waiver, workload.

120

Certain immigrant visa applicants may use Form I-601A to request a provisional waiver of the unlawful presence grounds of inadmissibility under INA section 212 (a)(9)(B) before departing the United States to appear at a U.S. Embassy or Consulate for an immigrant visa interview. 8 CFR 212.7(e)(3).

As of the third quarter of FY 2024, nearly 124,000 Forms I-601A were pending adjudication, and the median processing time to adjudicate a Form I-601A was 41.7 months. Of these pending applications, approximately 44,000, or 35 percent, were filed by noncitizens who have been in the United States for 10 years or more and are married to a U.S. citizen. While increased resources have allowed USCIS to complete more Form I-601A adjudications in FY 2024 year-to-date than in all of FY 2023, the backlog has only been reduced by 5,000 since the start of FY 2024. Although USCIS will carefully consider parole in place requests under this process on a case-by-case basis, USCIS expects that these adjudications will require fewer resources than those required to adjudicate the Form I-601A, given the nature of the adjudication. For example, requestors for this parole in place process will be required to file online, allowing for a more efficient adjudication, while the Form I-601A can only be filed on paper through the mail. USCIS has leveraged many of the efficiencies

121

developed for the online Form I-131 in the development of Form I-131F, which will be both filed and adjudicated electronically. Furthermore, as described elsewhere in this notice, the Form I-601A is a more complex adjudication involving the determination of various factors, including whether the noncitizen has met their burden to show they would be inadmissible only under INA section 212(a)(9)(B)(i) at the time of their consular interview, and whether they have demonstrated extreme hardship to a qualifying relative as required under INA section 212(a)(9)(B)(v), issues that are inherently more difficult to assess in comparison to a discretionary parole request.

121

Every submission completed online rather than through paper provides cost savings and operational efficiencies to both USCIS and its customers. USCIS scans some applications, petitions, and requests received on paper so that they can be processed electronically. USCIS offers recommendations to avoid delays when filing paper; if more documents were filed electronically, it would reduce the time spent on scanning paper documents and free up more time for adjudication rather than administrative tasks.

See

U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements, 89 FR 6194 (Jan. 31, 2024).

USCIS also anticipates that a significant number of noncitizens who may have otherwise filed Form I-601A as a step towards obtaining lawful permanent residence will instead pursue a parole in place request under this process. If future I-601A workloads are reduced, USCIS will be better able to focus on reducing the I-601A backlog, while assuming fewer new I-601A filings.

Although USCIS created a new Form I-131F to support this process, and USCIS will assume a new workload by accepting these parole in place requests, it will offset this new workload by charging a filing fee of $580 as it generally does for parole requests filed online.

122

Thus, USCIS anticipates it will recover the costs associated with this new workload through the fees collected.

122

See

8 CFR 106.2(a)(7); 106.1(g).

Because this process may result in fewer noncitizens filing Forms I-601A and pursuing immigrant visa applications at U.S. embassies or consulates, the parole in place process is also expected to reduce strain on DOS. Consular processing of an immigrant visa application after USCIS approves a Form I-601A involves significant DOS resources. The provisional unlawful presence waiver does not take effect until the applicant departs the United States, appears for an immigrant visa interview at a U.S. embassy or consulate, and is determined by a consular officer to be otherwise eligible for an immigrant visa in light of the approved provisional waiver.

123

If the consular officer finds that the noncitizen is inadmissible based on a ground other than INA section 212(a)(9)(B)(i), 8 U.S.C. 1182(a)(9)(B)(i), the provisional unlawful presence waiver is automatically revoked, and the noncitizen must seek a waiver of inadmissibility for all waivable grounds of inadmissibility through filing a Form I-601, Application for Waiver of

Grounds of Inadmissibility.

124

In such cases, the noncitizen must await USCIS adjudication of the Form I-601, which has a median processing time of 20.5 months. This revocation followed by a new adjudication adds to the DOS workload and reduces interview availability for other visa applicants. The parole in place process may thus help decrease future wait times for other noncitizens who have a visa number and are waiting for a visa interview at a U.S. embassy or consulate. Despite considerable efforts, some U.S. consular sections are still working to reduce backlogs caused by the COVID-19 pandemic.

125

As of June 2024, DOS's National Visa Center (NVC) had 394,836 individuals awaiting an immigrant visa interview; on average, the NVC can schedule 48,898 applicants for interviews each month.

126

If, as anticipated, more noncitizens pursue adjustment of status instead of consular processing, DOS could save consular interview appointments for other immigrant and nonimmigrant visa categories. While this would result in an increase in USCIS' adjustment of status workload, those filings will be accompanied by the required fee; USCIS believes that on net, implementation of the parole in place process will result in saving government resources compared to the status quo.

123

8 CFR 212.7(e)(12)(i).

124

8 CFR 212.7(e)(14).

125

U.S. Dep't of State, Immigrant Visa Interview-Ready Backlog Report (July 2024), available at

https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/visas-backlog.html.

126

Id.

The parole in place process also may save resources for ICE and the Department of Justice (DOJ) Executive Office for Immigration Review (EOIR) if, as a result of being granted parole in place and pursuing adjustment of status, fewer members of this population are placed in or remain in removal proceedings. Additionally, noncitizens who meet the criteria and are not priorities for enforcement may request to be considered for parole in place under this process, despite currently being in removal proceedings. If granted parole in place, they may seek to have their removal proceedings terminated or dismissed

127

and apply to adjust their status.

128

In the currently overburdened immigration court system, cases that are terminated or dismissed free up court time and permit immigration judges and ICE OPLA attorneys to focus on priority cases.

127

A grant of parole in place pursuant to this process does not automatically result in removal proceedings before DOJ EOIR being terminated or dismissed. Generally, a party to the removal proceedings (either the noncitizen or ICE) must move for termination or dismissal of removal proceedings. DOJ EOIR (either an immigration judge or the Board of Immigration Appeals) will evaluate and issue a decision on the motion for termination or dismissal under applicable standards.

See, e.g.,

8 CFR 1003.1(m), 1239.2(b); 8 CFR 1003.18(d).

128

If removal proceedings are not terminated or dismissed, the immigration judge generally retains exclusive jurisdiction to adjudicate any application for adjustment of status. 8 CFR 1245.2(a)(1) (providing that in “the case of any [noncitizen] who has been placed in . . . removal proceedings (other than as an arriving alien), the immigration judge . . . has exclusive jurisdiction to adjudicate any application for adjustment of status”);

see also

8 CFR 1245.2(a)(1)(ii) (describing exceptions for certain “arriving aliens”); 8 CFR 245.2(a)(1) (providing that USCIS “has jurisdiction to adjudicate an application for adjustment of status filed by any [noncitizen], unless the immigration judge has jurisdiction to adjudicate the application”).

Furthering National Security, Public Safety, and Border Security Objectives

This process will promote national security, public safety, and border security by requiring noncitizens who choose to request parole in place under this process to submit biometric and biographic information to DHS and undergo background and security checks. The information collected through this process will be used to thoroughly vet every requestor and may identify and disqualify individuals who pose a national security, public safety, or border security threat.

129

DHS has also determined that the criteria outlined in this notice—such as the requirements that the requestor have 10 years of continuous physical presence in the United States and that the marriage to a U.S. citizen must have occurred on or before June 17, 2024—promote process integrity, prevent potential fraud, and provide greater certainty about the scope of the potential population.

129

As discussed further in Section V.A. of this notice, there is an exception for border security concerns for stepchildren who otherwise meet the criteria for parole in place under this process.

Further, noncitizens granted parole may be more willing to report crimes because they will be less fearful that interacting with law enforcement will result in an immigration enforcement action.

130

One study found that 59 percent of Deferred Action for Childhood Arrivals (DACA) recipients would report a crime that they would not have reported before receiving DACA.

131

In that same study, two-thirds of respondents said they were less afraid of law enforcement after receiving DACA.

132

Additionally, studies have shown that when vulnerable communities feel safer reporting crimes, law enforcement can create more comprehensive strategies to effectively target perpetrators.

133

130

See, e.g.,

Stefano Comino

et al., Silence of the Innocents: Undocumented Immigrants' Underreporting of Crime and their Victimization,

39 J. of Pol'y Analysis, 1214, 1215 (2020) (“Undocumented victims' reporting rate is less than half the size of documented ones.”).

131

See

Roberto G. Gonzales,

Here's How DACA Changed the Lives of Young Immigrants, According to Research,

Vox (Feb. 16, 2018), available at

https://www.vox.com/2017/9/2/16244380/daca-benefits-trump-undocumented-immigrants-jobs.

Similar to deferred action, however, parole may be revoked at any time and does not constitute a right against enforcement action.

132

Id.

133

See, e.g.,

Stacey Ivie & Natalie Nanasi,

The U Visa: An Effective Resource for Law Enforcement,

78 FBI Law Enforcement Bulletin 10, 10-16 (Oct. 2009).

V. Eligibility

A. Criteria

To be considered for a discretionary grant of parole in place under this process, a requestor who is the noncitizen spouse of a U.S. citizen must meet the following criteria:

• Be present in the United States without admission or parole;

• Have been continuously physically present in the United States since at least June 17, 2014 through the date of filing the parole in place request;

• Have a legally valid marriage to a U.S. citizen on or before June 17, 2024;

• Have no disqualifying criminal history; and

• Submit biometrics, undergo required background checks and national security, public safety, and border security vetting, and be found not to pose a threat to national security or public safety.

To be considered for a discretionary grant of parole in place under this process, a requestor who is the stepchild of a U.S. citizen must meet the following criteria:

• Be present in the United States without admission or parole;

• Have a parent who entered into a legally valid marriage with a U.S. citizen on or before June 17, 2024 and before the child's 18th birthday;

• Have been continuously physically present in the United States since at least June 17, 2024 through the date of filing;

• Have no disqualifying criminal history; and

• Submit biometrics, undergo required background checks and national security and public safety vetting, and be found not to pose a threat to national security or public safety.

The burden is on the requestor to demonstrate by a preponderance of the evidence that they meet the criteria outlined in this notice, and that parole

is warranted as a matter of discretion for urgent humanitarian reasons or significant public benefit. Meeting the requirements for parole in place under this process does not establish eligibility for other immigration benefits, including LPR status.

Present in the United States Without Admission or Parole

A requestor must be present in the United States without admission or parole. Noncitizens who were last admitted with a valid nonimmigrant visa but have remained in the United States beyond the period of stay authorized are not eligible for parole in place.

134

Noncitizens who are immediate relatives of a U.S. citizen and had a valid nonimmigrant visa but have remained in the United States beyond the period of stay authorized were admitted and paroled may be eligible to apply for adjustment of status without seeking parole in place.

See

INA sec. 245(a), 8 U.S.C. 1255(a).

Continuous Physical Presence Since June 17, 2014

Noncitizen spouses of U.S. citizens requesting parole in place under this process must have been continuously physically present in the United States since at least June 17, 2014, through the date of filing the parole in place request. Requestors should provide documentation to account for as much of the period as reasonably possible, but there is no requirement that every day or month of that period be specifically accounted for through direct evidence.

135

USCIS will evaluate the totality of the evidence to determine whether the requestor has established by a preponderance of the evidence continuous physical presence for the required period of time.

135

See

section VI.B. of this notice for a list of documents that may be provided to establish continuous physical presence.

Marriage to a U.S. Citizen

To be eligible for parole in place as the noncitizen spouse of a U.S. citizen, the requestor must have entered into a valid marriage to a U.S. citizen on or before June 17, 2024, and be married on the date of filing the parole in place request (with an exception for widows and widowers as discussed below). USCIS will generally recognize a marriage as valid for purposes of this parole in place process if it is legally valid in the place where the marriage was celebrated.

136

This includes termination of any prior marriage. Although States and foreign countries may have specific laws governing jurisdiction, the place of celebration is generally where the ceremony took place or where the officiant of the ceremony was located and where the marriage certificate was issued.

137

Even if a marriage is valid in the place of celebration, there are circumstances where USCIS may not recognize a marriage as valid for purposes of this process, consistent with existing case law and policies for family-based immigrant visa petitions and other benefits.

138

136

See Matter of Hosseinian,

19 I. & N. Dec. 453, 455 (BIA 1987) (“the validity of a marriage for immigration purposes is generally governed by the law of the place of celebration of the marriage”);

Matter of Rodriguez-Cruz,

18 I. & N. Dec. 72, 73 (BIA 1981) (citing

Matter of P-,

4 I. & N. Dec. 610, 613-14 (A.G. 1952) (observing that in the absence of a legislative definition of marriage for immigration purposes, “the generally accepted rule is that the validity of a marriage is governed by the law of the place of celebration”)).

137

See

8 CFR 204.2(a)(2) (requiring certificate of marriage issued by civil authorities).

138

See

Adjudicator's Field Manual, Chapter 21, Family-based Petitions and Applications available at

https://www.uscis.gov/sites/default/files/document/policy-manual-afm/afm21-external.pdf; see also

USCIS Policy Manual Volume 12, Part G, Spouses of U.S. Citizens, Chapter 2, Marriage and Marital Union for Naturalization, Section A, Validity of Marriage [12 USCIS-PM G.2(A)], available at

https://www.uscis.gov/policy-manual/volume-12-part-g-chapter-2

(last updated June 28, 2024).

Consistent with the INA and case law, examples of the types of marital relationships that USCIS generally will not recognize for purposes of this process include, but are not limited to:

• Civil unions, domestic partnerships, or other relationships that do not confer the same legal rights and responsibilities to the parties as in a marriage recognized by a civil authority;

• Marriages that are contrary to public policy in the United States;

139

and

139

This includes polygamous marriages and marriages involving minors, or marriages involving close relatives.

See Matter of Manjoukis,

13 I. & N. Dec. 705 (BIA 1971) (14 year old not able to enter into legally valid marriage as it would be void under state law);

Matter of H-,

9 I. & N. Dec. 640 (BIA 1962) (a polygamous marriage, though valid where contracted, is not recognized for immigration purposes);

see also

INA sec. 101(a)(35), 8 U.S.C. 1101(a)(35);

Matter of Lovo-Lara,

23 I. & N. Dec. 746, 752 n.3 (BIA 2005);

Matter of B-,

5 I. & N. Dec. 698 (BIA 1954).

• Marriages where one or both parties to the marriage are not legally free to marry or have not given consent to the marriage.

140

USCIS does not recognize marriages that violate strong Federal public policy,

see Matter of H-,

9 I. & N. Dec. 640 (BIA 1962), and there is a strong Federal policy against marriages to which one or both parties do not consent. The Violence Against Women Act Reauthorization Act of 2022 added a definition of forced marriage (“a marriage to which 1 or both parties do not or cannot consent, and in which 1 or more elements of force, fraud, or coercion is present”), and provided for grants for victims' services and legal assistance for victims of forced marriage.

See

34 U.S.C. 12291(a)(16).

A noncitizen may be eligible for parole in place if their U.S. citizen spouse is deceased, as long as a legally valid marriage was entered into on or before June 17, 2024. However, there are additional requirements separate from the parole in place process that the noncitizen must meet to be eligible for adjustment of status. A noncitizen widow(er) must have a pending or approved Form I-130 filed on their behalf at the time of the U.S. citizen spouse's death or must file a Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, within two years from the date of the U.S. citizen spouse's death. The noncitizen must not have been legally separated from the U.S. citizen spouse at the time of the U.S. citizen spouse's death and must not have since remarried.

141

See

INA sec. 201(b)(2)(A)(i), 8 U.S.C. 1151(b)(2)(A)(i).

Noncitizen Stepchildren of U.S. Citizens

Noncitizen children of a noncitizen married to a U.S. citizen may be considered for parole in place under this process. For a child to qualify as the stepchild of a U.S. citizen, the child must have been under age 18 at the time of the marriage that created the stepparent-stepchild relationship and must have been unmarried and under the age of 21

142

as of June 17, 2024.

143

142

An immediate relative child's age is frozen at the time their Form I-130 or Form I-360 is filed in order to protect them from aging out before being able to adjust status.

See

INA sec. 201(f), 8 U.S.C. 1151(f).

143

See

INA sec. 101(b)(1)(B), 8 U.S.C. 1101(b)(1)(B).

The stepchild does not need to demonstrate continuous physical presence since June 17, 2014. However, they must have been continuously physically present in the United States since at least June 17, 2024, through the date of filing.

144

In addition, the stepchild's noncitizen parent must have entered into a legally valid marriage with a U.S. citizen on or before June 17, 2024.

144

See

Section VI.B. of this notice for a list of documents that may be provided to establish continuous physical presence.

If the marriage between the noncitizen parent and U.S. citizen spouse is terminated, either through divorce or death of one or both parents, the stepchild may still be eligible for parole in place if a valid marriage was entered into on or before June 17, 2024, and the stepchild meets the above criteria.

145

eligible stepchild may file on their own with their birth certificate and evidence of their parents' valid marriage without the participation of either parent.

145

For the stepchild to be eligible for an immigrant visa petition or adjustment of status, additional requirements must be met, including that a bona fide relationship exists between the stepchild and U.S. citizen stepparent and, if applicable, eligibility for certain surviving relative benefits.

See Matter of Pagnerre,

13 I. & N. Dec. 173 (BIA 1971) (when marriage is terminated by death but there was a continuing relationship thereafter

between petitioner and beneficiary, petitioner is regarded as the stepparent of beneficiary for immigration purposes and petition);

Matter of Mowrer,

17 I. & N. Dec. 613 (BIA 1981) (where the parents have legally separated or where the marriage has been terminated by divorce or death, the appropriate inquiry is whether a family relationship has continued to exist as a matter of fact between the stepparent and stepchild);

see also

INA secs. 201(b)(2)(A)(i) and 204(

), 8 U.S.C. 1151(b)(2)(A)(i), 1154(

) (describing additional requirements with respect to benefits for certain surviving relatives); 8 CFR 204.2(b) (same).

Lack of Criminal History, National Security Concerns, Public Safety Concerns, or Border Security Concerns

Requestors must not have a disqualifying criminal history or otherwise constitute a threat to national security, public safety, or border security.

146

All pending criminal charges are disqualifying, regardless of the nature of the charges. A noncitizen may apply for parole in place once those charges are resolved.

146

Indicators of national security concerns include, but are not limited to, participation in activities that threaten the United States or gang membership. Indicators of public safety concerns include, but are not limited to, serious criminal conduct or criminal history. Indicators of border security concerns include recent apprehension while attempting to enter the U.S. unlawfully or apprehension following unlawful entry after November 1, 2020; however, there is an exception for border security concerns for stepchildren who otherwise meet the criteria for parole in place under this process.

All felony convictions, including felony driving under the influence (DUI) offenses, are disqualifying. Additionally, disqualifying criminal history includes convictions for the following offenses, regardless of whether the offense is classified as a felony.

147

These categories of convictions also generally overlap with inadmissibility grounds for purposes of adjustment of status.

See

INA sec. 212(a), 8 U.S.C. 1182(a). DHS reserves its discretion to determine that other offenses are disqualifying, even if not listed.

• Murder, torture, rape, or sexual abuse;

• Offenses involving firearms, explosive materials, or destructive devices;

• Offenses relating to peonage, slavery, involuntary servitude, and trafficking in persons;

• Aggravated assault;

• Offenses relating to child pornography, sexual abuse or exploitation of minors, or solicitation of minors;

• Domestic violence, stalking, child abuse, child neglect, or child abandonment; and

• Controlled substance offenses (other than simple possession of 30 grams or less of marijuana).

148

Noncitizens who were under the age of 18 but convicted of a felony or a disqualifying misdemeanor are considered to have disqualifying criminal history and are not eligible for this process.

All other criminal convictions,

149

excluding minor traffic offenses, will result in a rebuttable presumption of ineligibility for parole in place. This presumption can be rebutted on a case-by-case basis by weighing the seriousness of the conviction against mitigating factors relating to the conviction as well as other positive factors that suggest that the noncitizen merits a favorable exercise of discretion. The weight of the rebuttable presumption will be guided by the seriousness of the conviction.

150

A less serious conviction, or a conviction that does not raise public safety concerns, will result in a presumption that carries less weight and can be more easily rebutted. In adjudicating parole in place requests on an individualized, case-by-case basis, the nature and seriousness of the conviction will determine the evidence needed to overcome it. Factors that can be considered in overcoming the presumption may include, for example:

149

Although not generally considered convictions for immigration purposes, USCIS will nonetheless consider juvenile delinquency adjudications as resulting in a presumption of ineligibility. However, the presumption may be overcome by factors such as the nature of the underlying offense, requestor's age at the time of the commission of the underlying offense, the length of time that has passed since the adjudication, the sentence or penalty imposed, evidence of rehabilitation, and any other relevant information.

150

Arrests or criminal charges that do not result in a conviction, such as where a requestor had been arrested but no charges were lodged, or a requestor had been arrested with charges lodged that were later dismissed, does not result in a presumption of ineligibility.

• Age of the conviction(s) (remoteness in time);

• Requestor's age at the time of the offense and conviction, including whether the requestor was a juvenile at the time of the offense;

• Sentence or penalty imposed;

• Evidence of subsequent rehabilitation;

• Nature of the conviction, including whether the conduct at issue was non-violent;

• Whether the conviction was an isolated offense when considered against the rest of the requestor's history (including consideration of whether multiple criminal convictions were on the same date and may have arisen out of the same act);

• Existence of a mental or physical condition that may have contributed to the criminal conduct;

• Requestor's particular vulnerability, including any physical or mental condition requiring treatment or care in the United States;

• Requestor's status as a victim of or witness to criminal activity, including domestic violence, or civil rights violation or labor rights violation under investigation by a labor agency, particularly if related to the criminal conduct at issue;

• Requestor's status, or that of their U.S. citizen spouse, as a current or former member of the U.S. military;

• Requestor's status as the primary caregiver for a U.S. citizen child or elderly parent or in-law;

• Evidence of requestor's good character, such as property ties, business ties, or value and service to the community;

• Length of requestor's presence in the United States;

• Requestor's status as a caregiver for an individual with disabilities, including U.S. citizen in-laws or siblings;

• Impact on other family members, including family members who are U.S. citizens and LPRs or

• Other factors USCIS considers relevant in its exercise of discretion.

B. Requestors with Unexecuted Final Removal Orders or Currently in Section 240 Proceedings

Requestors With Unexecuted Final Removal Orders

Noncitizens with unexecuted final removal orders

151

will be presumptively ineligible for parole in place under this process. However, DHS will evaluate, in the exercise of its discretion on a case-by-case basis, the facts and circumstances underlying the unexecuted final removal order in determining whether the noncitizen may overcome the presumption of ineligibility and be granted parole. Examples of information that may be relevant to DHS in its determination of whether the requestor has overcome the presumption of ineligibility include, but are not limited to:

152

151

Presumptive ineligibility applies to any removal order issued under INA 240, 8 U.S.C. 1229a, INA 235(b)(1), 8 U.S.C. 1225(b)(1), or any other provision of law. A final removal order under INA 240, 8 U.S.C. 1229a, is defined at INA 101(a)(47), 8 U.S.C. 1101(a)(47), and 8 CFR 1241.1.

152

These examples solely concern DHS's determination regarding whether the presumption of ineligibility for parole in place has been overcome; they are distinct from any standards considered by DOJ EOIR in the context of a motion to reopen.

• Lack of proper notice;

• Age of the noncitizen at the time the removal order was issued;

• Ineffective assistance of counsel or being a victim of fraud in connection with immigration representation; or

• Other extenuating factors or considerations such as:

○ Inability to understand proceedings because of language barriers;

○ Status as a victim of domestic violence;

○ Other extenuating personal factors, such as requestor's limited resources (

e.g.,

lack of housing that would have impacted ability to appear);

• A physical or mental condition requiring care or treatment during immigration proceedings.

153

A decision by USCIS to grant parole in place to a requestor with an unexecuted removal order does not rescind, cancel, vacate, or otherwise remove the existence of the unexecuted removal order. DOJ EOIR has sole jurisdiction over the decision to reopen removal proceedings under INA section 240, 8 U.S.C. 1229a,

see

INA sec. 240(c)(7), 8 U.S.C. 1229a(c)(7); such reopening vacates any final removal order issued under INA section 240, 8 U.S.C. 1229a,

see Nken

Holder,

556 U.S. 418, 429 n.1 (2009). An unexecuted removal order issued by DOJ EOIR under INA section 240, 8 U.S.C. 1229a, remains in existence, notwithstanding a grant of parole in place, unless and until the INA section 240 proceedings are reopened by an immigration judge or the BIA. Unexecuted removal orders issued by DHS (such as an order of expedited removal under INA section 235(b)(1), 8 U.S.C. 1225(b)(1), or an administrative order of removal under INA section 238(b), 8 U.S.C. 1228(b)), likewise remain in existence unless and until they are vacated, canceled, or rescinded by the relevant issuing authority within DHS in that agency's sole discretion.

Requestors in Section 240 Removal Proceedings

Eligible noncitizens who are currently in removal proceedings under INA section 240, including those who have been released under INA section 236(a) on bond or their own recognizance, and those without a final removal order, may submit a request to be considered for parole in place on a case-by-case basis, taking into account the totality of the circumstances, under this process.

154

Note, however, that a noncitizen who constitutes a national security, public safety, or border security concern is ineligible for parole under this process.

155

Further, this process does not preclude DHS from, in its discretionary authority, taking enforcement actions as deemed appropriate.

154

This includes those with a pending appeal to the BIA, as their removal order would not be administratively final pending resolution of the appeal.

155

See, e.g.,

September 2021 Guidelines,

supra

note 81. As noted in the September 2021 Guidelines, noncitizens present border security concerns if they were apprehended while attempting to enter the U.S. unlawfully or if they entered unlawfully after November 1, 2020. There is an exception to this for stepchildren who otherwise meet the criteria for parole in place under this process.

C. Factors Considered

As discussed in this notice, DHS's decision whether to grant parole in place to a requestor is a discretionary, case-by-case determination. Even if a requestor establishes that they have met all of the criteria for eligibility, USCIS will examine the totality of the circumstances in the individual case to determine whether the requestor merits a grant of parole in place as a matter of discretion for significant public benefit or urgent humanitarian reasons. In doing so, USCIS will weigh the positive factors against the negative factors that are present in the record. Requestors may provide evidence of positive factors to establish that they merit a favorable exercise of discretion, which may relate to, but are not limited to:

• Community ties;

• Advanced or young age;

• Length of presence in the United States;

• Status as a parent or caregiver of a U.S. citizen child or elderly parent or in-law;

• Status as a caregiver for an individual with disabilities, including U.S. citizen in-laws or siblings;

• Physical or mental condition requiring care or treatment in the United States;

• Status as a victim of or witness to a crime or civil rights violation, or labor rights violation under investigation by a labor agency;

• Impact on other family members, including family members who are U.S. citizens and LPRs;

• Status, or that of their U.S. citizen spouse, as a current or former member of the U.S. military; or

• Other positive factors about which the requestor wishes to provide information.

This is a non-exhaustive list of factors; USCIS may consider any relevant fact in the discretionary analysis.

VI. Filing Requirements and Processing Steps

A. Form

Requestors seeking parole in place as the spouse or stepchild of a U.S. citizen must submit Form I-131F, Application for Parole in Place for Certain Noncitizen Spouses and Stepchildren of U.S. Citizens, online with the appropriate fee. To submit Form I-131F, requestors must both complete the required form fields and submit the required evidence establishing eligibility.

B. Documentation

Requestors must submit the required evidence establishing eligibility, in compliance with Form I-131F instructions. Required documentation for noncitizen spouse requestors includes the following:

• Proof of identity, which may include:

○ Valid State or country driver's license or identification;

○ Birth certificate with photo identification;

○ Valid passport; or

○ Any government issued document bearing the requestor's name, date of birth, and photo.

156

Expired documents may be provided in conjunction with other documents.

• Evidence establishing their continuous physical presence since at least June 17, 2014, which may include, but is not limited to:

○ Internal Revenue Service (IRS) tax transcripts listing tax information;

○ Rent receipts or utility bills;

○ Deeds, mortgage statements, or rental contracts;

○ Bank, credit card, or loan statements showing regular transactions;

○ Insurance policies;

○ Automobile license receipts, title, or registration;

○ Hospital or medical records;

○ School records (letters, report cards, etc.);

○ Attestations to the requestor's physical presence by religious entities, unions, or other civic or community organizations;

○ Official records from a religious entity confirming the requestor's participation in a religious ceremony;

○ Birth certificates for children born in the United States;

○ Money order receipts for money sent into or out of the United States; or

○ Any other document that shows that the requestor maintained continuous physical presence in the United States for the requisite time period.

• Evidence establishing a valid marriage between the noncitizen spouse and U.S. citizen:

○ Current marriage certificate showing a legally valid marriage took place on or before June 17, 2024;

○ Any divorce decree, annulment decree, or death certificate showing that the noncitizen spouse's and their U.S. citizen spouse's prior marriages were terminated (if applicable); and

○ Death certificate of U.S. citizen spouse (if applicable).

• Proof of the U.S. citizenship status of the spouse/stepparent, which must include one of the following:

○ The spouse's/stepparent's U.S. birth certificate (if the spouse has held U.S. citizenship since birth);

○ The spouse's/stepparent's Certificate of Naturalization;

○ The spouse's/stepparent's Certificate of Citizenship;

○ The spouse's/stepparent's Form FS-240, Consular Report of Birth Abroad; or

○ The biographical page of the spouse's/stepparent's current U.S. passport.

• Arrest records and court dispositions of any arrests, charges, and convictions (if applicable).

Required documentation for noncitizen stepchild requestors includes the following:

• The birth certificate of the stepchild listing the name of the noncitizen parent as a natural parent;

• Proof of identity (as listed above);

• Evidence establishing their continuous physical presence since June 17, 2024 (as listed above);

• Evidence establishing a legally valid marriage between the noncitizen stepchild's noncitizen parent and the noncitizen stepchild's U.S. citizen stepparent took place on or before June 17, 2024 (as listed above);

• Proof of the U.S. citizenship status of the spouse/stepparent (as listed above);

• Arrest records and court dispositions of any arrests, charges, and convictions (if applicable).

C. Processing Steps

This parole in place process will be implemented in accordance with the lessons learned from similar processes, while building on technological advances and efficiencies in USCIS processing.

Filing Procedure

Each requestor must submit Form I-131F with the applicable filing fee, as listed on Form G-1055, Fee Schedule (currently $580). Fee waivers are not available, and requests must be submitted online. For information on creating a USCIS online account, visit

www.uscis.gov/file-online/how-to-create-a-uscis-online-account.

Each requestor, including noncitizen stepchild requestors, must file a separate Form I-131F and pay the fee individually.

Biometrics Submission

After the requestor files Form I-131F, they will be required to provide biometrics to USCIS, including fingerprints, photographs, and a signature. The requestor's biometric information will be used to conduct background checks, including checks for criminal history records, verify identity, determine eligibility for requested benefits, create immigration documents (

e.g.,

Employment Authorization Documents), or for any other purpose authorized by the INA.

157

After the requestor files the Form I-131F online, USCIS will notify the noncitizen in writing of the time and location for a biometric services appointment. Failure to appear for biometrics submission may result in a denial of the parole in place request.

157

As authorized by the INA, biometric information collected in this process may be used by other DHS components.

See also

discussion on information use and disclosure in this notice.

Case-by-Case Consideration for Parole

Noncitizens who meet the criteria listed in this notice may be considered for a discretionary grant of parole on a case-by-case basis. USCIS may grant parole in place to the requestor if USCIS determines that there is a significant public benefit or urgent humanitarian reason for parole and that the requestor merits a favorable exercise of discretion in the totality of the circumstances.

USCIS may prioritize the adjudication of Form I-131F for noncitizens who previously filed a Form I-601A. In establishing this parole in place process, DHS considered that certain noncitizens eligible for the parole in place process will have already prepared, filed, and paid a filing fee for a Form I-601A. USCIS has determined that prioritizing the adjudication of Forms I-131F filed by these noncitizens is justified in recognition that they availed themselves of existing processes to pursue an immigrant visa but may nonetheless wish to pursue parole in place to avoid the costs and potential separation or disruption to their family that consular processing entails. Additionally, prioritizing this population may have the downstream effect of reducing the adjudicatory resources needed for pending Forms I-601A as noncitizens who are granted parole in place through this process may subsequently apply, and be approved, for adjustment of status to that of an LPR.

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.

Parole Period

If granted parole in place on a case-by-case basis in the exercise of discretion, parole will generally be granted for a period of up to three years. Parole may be terminated at any time upon notice at DHS's discretion pursuant to 8 CFR 212.5(e)(2)(i). DHS does not contemplate a re-parole process at this time.

In addition, USCIS, in its sole discretion, may impose conditions on a grant of parole with respect to any noncitizen under this process, and it may request verification of the noncitizen's compliance with any such condition at any time.

158

Violation of any condition of parole may lead to termination of the parole in accordance with 8 CFR 212.5(e).

158

See

INA sec. 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A).

Employment Authorization

If parole in place is granted, the parolee will be eligible to request an Employment Authorization Document (EAD) pursuant to 8 CFR 274a.12(c)(11), as recipients of parole under INA section 212(d)(5), 8 U.S.C. 1182(d)(5). An individual seeking employment authorization as a parolee (category (c)(11)) may request a waiver of the Form I-765, Application for Employment Authorization, fee by submitting Form I-912, Request for Fee Waiver along with the Form I-765.

Subsequent Form I-130 or Form I-485

A grant of parole in place does not establish eligibility for an immigrant visa petition or a presumption that the marriage is bona fide for purposes of an immigrant visa petition or other immigration benefits. Following a grant of parole to a noncitizen, the U.S. citizen spouse or stepparent of the noncitizen is encouraged to file a Form I-130, or, in the case of certain widow(er)s, the noncitizen may file Form I-360, concurrently with the Form I-485 if they have not filed a standalone Form I-130 or Form I-360 already. For purposes of Form I-130 based on marriage, a petitioner must demonstrate that they entered into a bona fide marriage with the beneficiary, and for a Form I-130 for a stepchild, the petitioner must demonstrate they entered into a bona fide marriage to the beneficiary's noncitizen parent. There are additional requirements for Form I-360 for certain widow(er)s and their children, including filing deadlines, residence requirements, and marital status requirements.

159

A stepchild may remain eligible for an immigrant visa despite their parent's marriage to a U.S. citizen being terminated through death of either parent or divorce, so long as a bona fide stepparent-stepchild relationship continued to exist following the death or divorce.

159

See

INA secs. 201(b)(2)(A)(i), 204(l), 8 U.S.C. 1151(b)(2)(A)(i), 8 U.S.C. 1154(l).

Further, a discretionary grant of parole does not in itself establish eligibility for adjustment of status to that of an LPR under INA section 245(a), 8 U.S.C. 1255(a). As discussed elsewhere in this notice, a grant of parole would satisfy the requirement under INA section 245(a), 8 U.S.C. 1255(a), that the applicant has been inspected and admitted or paroled by an immigration officer. The noncitizen, however, must satisfy all other requirements for adjustment of status, including establishing that they are not inadmissible under any applicable grounds.

160

As noted, if the noncitizen is granted parole in place, the noncitizen and their spouse or stepparent would need to file Form I-130 (if not previously filed) and Form I-485.

161

160

Furthermore, by avoiding the need to depart the United States to seek an immigrant visa at a U.S. embassy or consulate, the noncitizen would not trigger the inadmissibility grounds at INA sec. 212(a)(9)(B), 8 U.S.C. 1182(a)(9)(B), by seeking admission after such departure.

161

Additionally, there may be instances where the noncitizen would also have to file the Form I-601, Application for Waiver of Grounds of Inadmissibility.

Information Use and Disclosure

DHS generally will not use information contained in a request for parole in place under this process for the purpose of initiating immigration enforcement action against the requestor unless DHS determines, in its discretion, the requestor poses a threat to national security, public safety, or border security.

162

This process does not preclude DHS from, in its discretionary authority, taking enforcement actions as deemed appropriate, in accordance with the INA and consistent with governing policies and practices, against noncitizens who may be eligible or who have pending applications for parole under this process. Information provided under this process may be otherwise disclosed consistent with statutory authorities, obligations, and restrictions, as well as governing privacy and information-sharing policies.

162

See, e.g.,

September 2021 Guidelines,

supra

note 81.

D. Termination and No Private Rights

As provided under INA section 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A), parole decisions are made by the Secretary “in his discretion.” This process is being implemented as a matter of the Secretary's discretion, and the Secretary retains the sole discretion to terminate parole in place under this process at any point. It is not intended to, shall not be construed to, may not be relied upon to, and does not create any rights, privileges, benefits, substantive or procedural, enforceable by any party in any matter, civil or criminal, against the United States, its departments, agencies, or other entities, its officers or employees, or any other person.

VII. Considerations in the Establishment of This Parole in Place Process

In establishing this process, DHS considered various alternatives, as well as the impacts on resources and processing and the broader impacts on both the Federal government and State and local governments.

A. Alternatives to This Process

In exercising the Secretary's discretionary parole authority to establish a parole in place process, DHS considered various alternatives to the process.

First, DHS considered whether it could instead dedicate additional resources to the processing of pending Forms I-601A. As discussed elsewhere in this notice, the provisional unlawful presence waiver process allows certain noncitizens, including spouses of U.S. citizens, to obtain a provisional unlawful presence waiver prior to their departure from the United States to pursue an immigrant visa at a U.S. embassy or consulate abroad. It is intended to reduce the time noncitizens must spend apart from their U.S. citizen family members while increasing certainty that they will be granted a waiver of the inadmissibility ground that is triggered once they depart.

163

However, the provisional unlawful presence waiver process still entails some period of families being separated because it requires consular processing abroad after approval of the Form I-601A, often at great financial cost. It also involves some level of uncertainty and risk. The grant of a provisional waiver is not a guarantee that the waiver of inadmissibility or the immigrant visa, will ultimately be granted.

164

Likewise, a grant of parole in place does not guarantee that an application for adjustment of status will be approved, but because the application process takes place while the applicant is in the United States, noncitizens may be more likely to pursue this option. For some families, even a short-term separation from a family member, whose income or other household contributions are needed, may be untenable.

163

See

78 FR 536 (Jan. 6, 2013).

164

See

8 CFR 212.7(e)(12)(i) (noting the conditions that must be satisfied for the provisional unlawful presence waiver to take effect).

Moreover, even if, as an alternative to this process, USCIS dedicated additional resources to provisional waiver processing, doing so would not provide the previously noted significant public benefit of this process. As described in Section IV of this notice, this process furthers diplomatic relationships and foreign policy objectives. It also sets out a streamlined and less resource intensive adjudication, as compared to the more complex and resource intensive provisional waiver process which involves determining if the applicant has met their burden of proving they would be inadmissible only for unlawful presence upon departure, and that they have demonstrated extreme hardship to a qualifying relative.

165

Although USCIS has significantly increased resources devoted to the Form I-601A backlog relative to previous years, the backlog of pending applications will still take at least three years to be meaningfully reduced. Accordingly, although USCIS considered dedicating even more resources to Form I-601A processing, it concluded that doing so would not effectively address the backlog in the near term or support timely adjudications of other workloads as compared to the processing efficiencies gained through implementation of this parole in place process.

165

8 CFR 212.7(e).

USCIS anticipates that its adjudication of parole requests under this process will be less resource-intensive than the adjudication of Form I-601A applications, given process efficiencies that USCIS has identified in adjudicating parole requests in other parole processes, and considering the complexity and resources required for the I-601A adjudication. And unlike the provisional waiver process, parole in place will not entail a period of separation from U.S. citizen family members or, alternatively, require U.S. citizen family members to depart the United States with the noncitizen. Additionally, it will obviate the need for consular processing, thereby diverting noncitizens with parole in place from DOS backlogs and reducing wait times for other noncitizens seeking visas at U.S. consulates.

While the Form I-601A process will remain critical for other categories of immigrant visa applicants who are not eligible for this process, parole in place offers a less onerous path for a subset of the I-601A-eligible population who have lived in the United States for at least 10 years, are married to U.S. citizens or are the noncitizen

stepchildren of U.S. citizens, have no disqualifying factors, and merit a favorable exercise of discretion.

DHS acknowledges that there will be an increase in filings of Form I-765, as well as an increase in Form I-130 and Form I-485 filings but notes that these forms have associated filing fees that cover the cost of adjudication, and USCIS has implemented streamlined processing for certain categories of employment authorization documents, and other immigration benefit requests, including those filed by parolees. In considering all the factors, DHS determined that the benefits of implementing this process, as discussed in Section IV of this notice, outweigh any additional workload assumed by USCIS.

Second, DHS has considered alternative approaches in designing this process. Specifically, in proposing parameters for this process, DHS considered the following alternatives:

•

Length of requisite physical presence:

DHS considered the time period by which a requestor would likely have established deep ties to their communities in the United States in determining the period of continuous physical presence required to access this process. In making this determination, DHS considered whether a longer period (such as 15 years) or a shorter period (such as five or eight years) was more appropriate and considered estimates of the potential population for each of these time periods. Because Congress has articulated a 10-year length of continuous presence as a prerequisite for certain non-LPR noncitizens to seek lawful permanent residence through a separate process known as cancellation of removal,

166

DHS concluded that 10 years would be an appropriate length of time to require noncitizens to have been present in the United States to access this process.

166

See

INA sec. 240A(b)(1)(A), 8 U.S.C. 1229b(b)(1)(A).

DHS also considered whether the noncitizen could continue to accrue the required 10 years of continuous physical presence until the time a parole request is filed, or whether the noncitizen must have accrued the 10 years by the time the process was announced. DHS determined that requiring continuous physical presence to have accrued by a certain date provides greater predictability and certainty about the scope of the potential population, which in turn will assist DHS in determining the appropriate resources to dedicate to this process. Requiring 10 years of continuous physical presence by June 17, 2024 for noncitizen spouses of U.S. citizens also provides clarity to the public and avoids unintentionally incentivizing any irregular migration by noncitizens who might otherwise seek to enter the United States to access this process.

•

Marriage to a U.S. citizen:

In requiring noncitizen spouses of U.S. citizens to have a legally valid marriage on or before June 17, 2024, DHS considered whether marriages that took place after this date could nevertheless be qualifying. DHS determined that requiring marriages to have taken place by June 17, 2024 would better promote process integrity, prevent potential fraud, and provide greater certainty about the scope of the potential population.

DHS also considered whether marriage to an LPR could be a qualifying factor and determined against it because a primary goal of establishing this proposed process is to remove a barrier to an immigration benefit that may otherwise be immediately available to the noncitizen. When a noncitizen marries a U.S. citizen, they qualify as an “immediate relative” under the INA and are able to immediately apply for LPR status (

i.e.,

without needing to wait for an immigrant visa to become available).

167

Noncitizen spouses of LPRs who lack lawful status do not qualify as “immediate relatives” and therefore do not have an immediate path to adjustment of status (even if granted parole) because they must wait for an immigrant visa to become available before they can apply for LPR status. They also are subject to other ineligibility provisions barring adjustment of status that are not applicable to spouses of U.S. citizens.

168

167

See

INA sec. 201(b)(2)(A)(i), 8 U.S.C. 1151(b)(2)(A)(i); 8 CFR 204.1(a)(1).

168

See, e.g.,

INA sec. 245(c)(2), 8 U.S.C. 1255(c)(2).

DHS considered whether the marriage must be of a specified duration (

e.g.,

two years) at the time of the parole in place request, particularly to address potential concerns about marriage fraud and integrity of this process. The fixed date by which the marriage must have taken place (June 17, 2024), eliminates any concern that individuals may marry solely to take advantage of this process. Moreover, USCIS will further assess the validity of the marriage for immigration purposes, including a thorough review of the bona fides of the marriage, during its consideration of the Form I-130 and Form I-485. In its consideration of these forms, USCIS will employ its standard, rigorous procedures to detect potential marriage fraud, further ensuring that fraudulent marriages will not serve as the basis for a grant of adjustment of status following access to this parole in place process. Finally, USCIS can grant adjustment of status to conditional lawful permanent residents on the basis of marriage to a U.S. citizen when the marriage is less than two years in length. Therefore, DHS determined that this process will not require that the marriage be of a specified length, though DHS requires that the marriage be legally valid in the place of celebration as of June 17, 2024.

DHS also decided to include widow(er)s who entered into a legally valid marriage with a U.S. citizen prior to June 17, 2024. DHS believes that including this population furthers the goals of the process because widow(er)s of U.S. citizens may continue to be eligible for immigrant visa petition approval and to apply to adjust status if certain requirements are met. DHS also notes that including this population is consistent with the process for family members of military service members, in which the widow(er) of a deceased U.S. citizen service member is eligible for parole in place. To be eligible for immigrant visa petition approval and be eligible to apply to adjust status, the widow(er) must have a Form I-130 filed on their behalf at the time of the U.S. citizen's death or file a Form I-360 within two years of the U.S. citizen's death. The widow(er) must also be unmarried when their immigrant visa petition is adjudicated. A widow(er)'s children may also be eligible for immigrant visa petition approval and to adjust status as the derivative child of the widow(er). For these reasons, DHS determined that, based on continued eligibility to apply for an immigration benefit and adjustment of status, spouses and stepchildren of deceased U.S. citizens could qualify for this parole process if they demonstrate the additional qualifying criteria at the time of filing an immigrant visa petition.

•

Stepchildren of a U.S. citizen:

Noncitizens who are granted parole under this process may have children in the United States who lack lawful status and who are unable to adjust their status without facing the same barriers that their noncitizen parents would encounter in the absence of a parole in place grant under this process.

DHS determined that providing these noncitizen stepchildren access to this process is necessary to fully meet its objective of promoting the unity and stability of families in which a U.S. citizen is married to a noncitizen who lacks lawful status. DHS estimates that 50,000 noncitizen children of

noncitizen spouses who are married to U.S. citizens may be eligible to request consideration under this process. However, DHS is requiring that the noncitizen stepchild have been continuously physically present in the United States without admission or parole since at least June 17, 2024, and through the date of filing, since children may be under the age of 10 or otherwise unable to meet the 10 years required for noncitizen spouses of U.S. citizens. Additionally, as with the physical presence requirement for spouses, requiring physical presence in the United States as of a date prior to announcing this process avoids unintentionally incentivizing any irregular migration by noncitizens who might otherwise seek to enter the United States to access this process.

DHS also considered limiting this parole in place process to children whose noncitizen parent was also requesting parole. DHS determined that noncitizen stepchildren of a U.S. citizen may apply for an immigrant visa petition separately even if the noncitizen parent does not have an immigrant visa or status, and therefore should not be excluded from this process. A qualifying noncitizen stepchild of a U.S. citizen may be eligible as a beneficiary of Form I-130 based on their relationship with the U.S. citizen stepparent. This is the case even if the parents divorced or the noncitizen parent died. As such, DHS determined that noncitizen stepchildren who would otherwise be eligible as a beneficiary of Form I-130 based on a stepparent-stepchild relationship, notwithstanding divorce of the parents or death of the noncitizen parent, should also be eligible to request parole in place under this process.

•

Criminal history and threats to national security, public safety or border security:

DHS determined that noncitizens with serious criminal convictions will be ineligible for parole under this process.

169

DHS also determined that other criminal convictions (other than minor traffic offenses) will result in a presumption of ineligibility for parole. This presumption can be rebutted on a case-by-case basis by weighing the seriousness of the conviction against positive factors that overcome the presumption.

170

Additionally, all requestors will undergo rigorous national security and public safety vetting as part of this process. Those individuals who pose a threat to national security, public safety or border security

171

will be disqualified from this process and, where appropriate, will be referred to law enforcement. In making these determinations, DHS considered that certain criminal convictions were likely to render a noncitizen statutorily ineligible for adjustment of status, and decided that those criminal convictions that are disqualifying for this process would generally overlap with the statutory inadmissibility grounds. In addition, DHS determined that noncitizens with pending criminal charges will be ineligible for parole in place under this process until those charges are resolved.

169

See

Section V.A. of this notice for the full list of disqualifying criminal convictions.

170

See id.

for a list of factors USCIS may consider in determining whether the requestor has overcome the presumption.

171

There is an exception for border security concerns for stepchildren who otherwise meet the criteria for parole in place under this process.

•

Parole period length:

DHS determined that a three-year grant of parole was most appropriate for this process, though it considered both shorter and longer periods of time. Other processes, such as the family reunification parole processes, provide for up to a three-year grant of parole.

After being granted parole in place, the noncitizen will generally be eligible to apply to adjust their status if they have an approved Form I-130 or their Form I-485 is accompanied by a Form I-130. The benefits of parole (including lawful presence and employment authorization) will remain in effect for the period of parole. Currently, the median processing time for an immediate relative Form I-130, when filed separately from a Form I-485, is 11.4 months, for Form I-360 (all categories) is 3.2 months, and the median processing time for a family-based Form I-485, when filed separately from a Form I-130, is 9.4 months.

172

Concurrent filing of these two forms is permitted for noncitizen spouses of U.S. citizens. Assuming that noncitizens would need time to compile evidence for these applications, save the necessary funds to pay fees, and file these applications, a three-year grant of parole will provide an appropriate amount of time to obtain adjustment of status following the grant of parole in place based on median USCIS processing times. A shorter timeframe would likely be insufficient to cover the time needed to prepare and file the adjustment application, while a longer timeframe would risk disincentivizing parolees from timely applying for adjustment of status.

172

See

Historical National Median Processing Time (in Months) for All USCIS Offices for Select Forms by Fiscal Year, available at

https://egov.uscis.gov/processing-times/historic-pt.

In making this determination, DHS considered that parole in place is granted for certain military family members for a one-year period, which currently is subject to subsequent periods of parole in one-year increments, and is also fee exempt. Additionally, military parole in place is available for a broader category of relatives: spouses, widow(er)s, parents, and sons and daughters of U.S. citizen or LPR military members and veterans, whereas this process is open only to certain noncitizen spouses and stepchildren of U.S. citizens who may have an immediate path to adjustment of status. However, in more recent parole processes, DHS has found that a longer parole period is more efficient for the public and the agency as it reduces the need for recipients to seek re-parole.

173

A three-year parole period was therefore determined to be appropriate for certain noncitizen spouses and stepchildren of U.S. citizens to ensure that they have sufficient time to obtain adjustment of status during their parole period, especially given that re-parole for requestors granted parole under this process is not contemplated at this time.

173

See, e.g., Implementation of a Family Reunification Parole Process for Colombians,

88 FR 43591 (July 10, 2023);

Implementation of a Family Reunification Parole Process for Ecuadorians,

88 FR 78762 (Nov. 16, 2023);

Implementation of a Family Reunification Parole Process for Salvadorans,

88 FR 43611 (July 10, 2023);

Implementation of a Family Reunification Parole Process for Guatemalans,

88 FR 43581 (July 10, 2023);

Implementation of a Family Reunification Parole Process for Hondurans,

88 FR 43601 (July 10, 2023);

Implementation of Changes to the Cuban Family Reunification Parole Process,

88 FR 54639 (Aug. 11, 2023);

Implementation of Changes to the Haitian Family Reunification Parole Process,

88 FR 54635 (Aug. 11, 2023).

•

Removal proceedings:

DHS considered whether and how a parole in place process should be available to noncitizens in pending removal proceedings under INA section 240, 8 U.S.C. 1229a. Given that some noncitizens in removal proceedings may be eligible to adjust status if granted parole, USCIS will consider requests for otherwise eligible noncitizens in pending removal proceedings who do not have a final order of removal. This includes those who have been released on bond or their own recognizance under INA section 236(a), 8 U.S.C. 1226(a), provided they remain applicants for admission. USCIS will coordinate with ICE OPLA as it deems appropriate. A noncitizen who is considered a national security, public safety or border security concern will be generally disqualified from receiving

parole in place pursuant to this process. However, given the overall objective to preserve family unity, there is an exception for border security concerns for stepchildren who were placed into proceedings after November 1, 2020, who otherwise meet the criteria for parole in place under this process. In such cases, USCIS will consider any extenuating or mitigating factors, including family unity, age at the time of placement in proceedings, or other factors that USCIS considers relevant in the exercise of discretion. The exception for border security for certain noncitizen stepchildren of a U.S. citizen is consistent with the eligibility requirement for this process as stated in section V.A. of this preamble (explaining that noncitizen stepchildren may request parole in place under this process), the requirement for continuous physical presence in the United States only covers June 17, 2024 through the date of filing.

•

Prior removal orders:

DHS considered whether noncitizens with unexecuted final removal orders should be eligible for this process. DHS determined that noncitizens with unexecuted final removal orders will be presumptively ineligible for parole under this process. DHS recognizes that a noncitizen may have grounds to request that an immigration judge or the BIA reopen their immigration proceedings when they are otherwise eligible for adjustment of status, and thus determined that categorical ineligibility for this parole process would be inappropriate. As a result, DHS will evaluate, in the exercise of its discretion on a case-by-case basis, the facts and circumstances underlying the unexecuted final removal order and all other mitigating factors presented in determining whether the noncitizen may overcome the rebuttable presumption of ineligibility and be granted parole in place.

174

See

Section V.A. of this notice for a list of examples of information that may be relevant to DHS in its determination as to whether the requestor has overcome the presumption of ineligibility.

DHS acknowledges that granting parole in place to requestors with unexecuted removal orders could increase the volume of motions to reopen removal proceedings that EOIR will receive, and which ICE OPLA will review and respond to, as appropriate. DHS believes that a rebuttable presumption of ineligibility, and consideration of the factors listed in Section V.B. of this notice strike an appropriate balance to providing access to parole in place under this process to noncitizens who may have grounds to support the granting of parole in place. If granted parole in place, noncitizens who are prima facie eligible for adjustment of status may independently pursue reopening and dismissal of their case before EOIR to permit the filing of an adjustment of status application before USCIS.

•

Form I-130:

DHS considered whether the noncitizen should be required to have an approved Form I-130 prior to being granted parole in place under this process, given that it is a prerequisite for access to the FRP processes. However, DHS anticipates that many noncitizens who will benefit from this process may not yet have filed a Form I-130 because they are currently ineligible to adjust status and may not wish to pursue consular processing given the prospect of prolonged separation from their U.S. citizen family members. Requiring a previously approved Form I-130 could disqualify a significant portion of this population from this process and would be less effective in achieving the significant public benefits described in this notice, including of stabilizing and unifying families and enabling these noncitizens to contribute more fully to the U.S. economy. Moreover, immediate relatives who have been paroled are eligible to file their Form I-130 concurrently with their Form I-485. Requiring that a noncitizen file a Form I-130—either alone, or concurrently with a Form I-485—to request parole in place under this process would create significant inefficiencies and run counter to DHS' goal of reducing strain on limited government resources.

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Form I-134:

DHS considered whether the noncitizen should be required to file Form I-134, Declaration of Financial Support, which USCIS uses in certain circumstances to determine whether applicants or beneficiaries of certain immigration benefit requests have sufficient financial resources or financial support to pay for expenses during their temporary stay in the United States.

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However, DHS declined to include a requirement for submission of Form I-134 for this parole in place process. USCIS has not generally required Form I-134 for parole in place requests. For the existing military parole in place process, noncitizen family members of U.S. military service members who are granted parole in place are required to file Form I-864, Affidavit of Support Under INA Section 213A when they file for adjustment of status. Form I-864A is executed by a sponsor as evidence that the noncitizen has adequate means of financial support and are not likely at any time to become a public charge under INA section 212(a)(4)(A), 8 U.S.C 1182(a)(4)(A). Similarly, following a grant of parole in place through this process, noncitizen spouses and noncitizen stepchildren are expected to apply to adjust status, at which time they too will be required to submit a Form I-864. Once adjustment of status is granted, the sponsorship obligations associated with the Form I-864 remain in effect until, for example, the noncitizen naturalizes or is credited with 40 quarters of work.

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DOS also requests applicants or beneficiaries of certain immigration benefit requests submit Form I-134 in certain circumstances.

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See

8 CFR 213a.3(e)(2)(i).

DHS has, therefore, determined that requiring a noncitizen to submit a Form I-134 as part of their parole in place request when shortly thereafter, they will be required to submit a Form I-864 with their adjustment of status application, is unnecessarily duplicative and adds an extra burden on requestors. Moreover, requiring USCIS officers to adjudicate similar but unrelated evidence related to financial support would create inefficiencies that run counter to DHS's goals of reducing strain on limited government resources and facilitating access to adjustment of status through this process.

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Inadmissibility:

DHS additionally considered requiring the requestor to demonstrate that they are not inadmissible under any ground set forth in INA section 212(a), 8 U.S.C. 1182(a), to be granted parole under this process. This parole in place process is meant for those requestors who are otherwise eligible to adjust status. As noted elsewhere in this notice, serious criminal convictions, including certain convictions that would render the requestor inadmissible and therefore ineligible for adjustment of status, will be disqualifying for this process; other criminal convictions, as well as prior, unexecuted removal orders, will trigger a rebuttable presumption of ineligibility for this process. However, detailed consideration of grounds of inadmissibility—including whether applicable grounds can be waived—is a complex analysis undertaken during the Form I-485 adjustment of status adjudication. Requiring parole in place adjudicators to conduct the inadmissibility analysis that is normally conducted at the adjustment of status stage would be an inefficient, duplicative, and costly use of USCIS resources. Therefore, when assessing eligibility for parole in place, while DHS will consider the requestor's criminal and immigration history and any other

adverse factors that could bear upon admissibility, it will not import the admissibility analysis conducted at the Form I-485 stage into the parole adjudication.

As discussed elsewhere in this notice, a grant of parole in place would satisfy the requirement under INA section 245(a), 8 U.S.C. 1255(a), that the adjustment applicant has been “inspected and admitted or paroled” by an immigration officer. This process is meant for requestors who are otherwise eligible for adjustment of status and who merit a favorable exercise of discretion; the noncitizen, however, when applying to adjust status, must satisfy all other requirements for adjustment of status, including establishing that the requestor is not inadmissible under any applicable grounds.

B. Resource Considerations and Impacts on USCIS Processing

DHS has considered the potential impact of this process on noncitizens applying for other immigration benefits. While there could be an impact initially on wait times for other USCIS-administered immigration programs and processes, over time, this process will assist USCIS in creating efficiencies in other workloads. For example, USCIS will be able to reduce processing times more quickly for the Form I-601A because some noncitizens who would have filed a Form I-601A and pursued consular processing would instead request parole in place and adjustment of status. DHS also considered the potential impact of this process on USCIS operations. This process will result in an increased number of individuals visiting USCIS Application Support Centers (ASC) to have their biometrics collected and will require USCIS to divert some resources to develop the technical solutions to administer this process and complete the adjudications. However, because USCIS will require all parole in place requestors to pay a fee, it is anticipated that the agency will recover fully the costs associated with this workload.

USCIS also anticipates that this process will lead to increased filings of Forms I-485 because some noncitizens who would otherwise seek lawful permanent residence via consular processing, or would have remained without status, will now seek adjustment of status. However, USCIS expects that the costs to the agency of adjudicating increased volumes of Forms I-485 will be in large part recovered by the Form I-485 fees. DHS has also determined that any additional adjudicatory costs are warranted by the significant public benefits described throughout this notice.

Finally, the process will provide needed relief to U.S. embassies and consulates, some of which have significant backlogs of noncitizens awaiting interviews for immigrant visa applications.

C. Potential Impact on Federal Government and Access to Federal Benefits

DHS has considered the impact of the proposed process on eligibility for Federal public benefits. Only noncitizens who are considered “qualified aliens” may access certain Federal public benefits programs.

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“Qualified aliens” include noncitizens paroled under INA section 212(d)(5), 8 U.S.C. 1182(d)(5), for a period of at least one year, as well as lawful permanent residents and several other categories.

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See

Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), Public Law 104-193, title IV, 110 Stat. 2105, 2260-77 (Aug 22, 1996).

However, nearly all of these benefits programs are available only to noncitizens who have been in “qualified” status for at least five years. For example, the Supplemental Nutrition Assistance Program (SNAP) generally requires noncitizens to have been in “qualified” status for five yea

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