New Parole Program for Spouses and Stepchildren of U.S. Citizens and Process Improvements for Employment-Based Visas for DACA Recipients and Other Undocumented Graduates

Last Updated

June 26, 2024

The Announcement

On June 17, 2024, the U.S. Department of Homeland Security (DHS) announced a new parole program for certain spouses and children of U.S. citizens. According to DHS’s announcement, the agency will establish a process to consider, on a case-by-case basis, requests for parole from these individuals. If granted parole, they would be able to apply for lawful permanent residence without having to leave the United States. Additionally, in its announcement, DHS stated that it would join the U.S. Department of State (DOS) to facilitate employment-based nonimmigrant visas more efficiently for eligible individuals, including Deferred Action for Childhood Arrivals (DACA) recipients and undocumented persons who had graduated from an accredited U.S. institution of higher education. The following day, the White House published a Fact Sheet regarding DHS’s announcement.

Who Is Eligible for Parole?

DHS announced that spouses of U.S. citizens can apply for parole-in-place if they meet certain criteria. To be eligible, individuals must meet the following criteria:

  • Be present in the United States without admission or parole;
  • Have been continuously present in the United States for at least 10 years as of June 17, 2024;
  • Have a legally valid marriage to a U.S. citizen as of June 17, 2024;
  • Have no disqualifying criminal history;
  • Not pose a threat to public safety or national security;
  • Merit a favorable exercise of discretion; and

Be eligible to apply for adjustment of status. Additionally, noncitizen stepchildren may be considered for parole under this process if they are physically present in the United States without admission or parole and have a qualifying stepchild relationship to a U.S. citizen as of June 17, 2024.

What Is Parole?

The Immigration and Nationality Act (INA) gives the DHS Secretary discretionary authority to parole individuals into the United States temporarily, under conditions the Secretary prescribes, on a case-by-case basis for urgent humanitarian reasons or significant public benefit. INA § 212(d)(5)(A). The statute also allows DHS to grant parole to individuals who are present in the United States without lawful immigration status, which allows them to remain for a specified period of time. While parole grants “entry” into the United Statues, it is not the same as an “admission.” Rather, a parolee is an applicant for admission. Importantly, though, parole allows individuals to meet the threshold requirement to adjust status under INA § 245(a), which requires the applicant to have been “inspected and admitted or paroled.” INA § 245(a) (emphasis added).

Why Is this Important?

Under current immigration laws, persons eligible to immigrate through a family-based petition fall into two categories: immediate relatives and those who are in one of the “preference” categories. Immediate relatives include spouses of U.S. citizens; unmarried children under 21 of U.S. citizens; and parents of U.S. citizens at least 21 years of age. Immediate relatives who wish to adjust their status within the United States and become lawful permanent residents under INA § 245(a) must have been “inspected and admitted or paroled.” Individuals who enter the United States without inspection are not “inspected and admitted or paroled” and are thus ineligible to adjust their status within the United States, even if they married to a U.S. citizen. Instead, these individuals must leave the United States and apply for an immigrant visa at a U.S. consulate abroad. But those who have acquired at least 180 days of “unlawful presence” and depart would trigger a three-year bar to reentry, and those who have acquired one year of “unlawful presence” and depart would trigger a 10-year bar to reentry. In other words, the U.S. citizen spouse who was not inspected and admitted or paroled and who has been in the United States for over a year would have to depart from the United States and remain abroad before being allowed to immigrate. Alternatively, they would have to have been granted a waiver of the unlawful presence bar based on establishing extreme hardship to their U.S. citizen spouse. Even this waiver could later be revoked by the consulate under certain circumstances.

This new program allows individuals who meet the above criteria to request and be granted parole-in-place. They would then be able to apply to adjust their status to lawful permanent resident in the United States, rather than departing and risking a bar to reentry.

When Can Individuals Apply for Parole-In-Place?

The government has not released details regarding the application process, cost, or timeline for this parole program. In its Key Answers and Questions publication, U.S. Citizenship and Immigration Service (USCIS) stated it will “soon publish a Federal Register Notice to implement this process, explain the application process, and provide additional guidance on requirements to be considered for parole in place.” Additionally, and importantly, “USCIS will reject any filings received before the date when the application process begins.” So, it’s important to make the communities you serve aware that they should beware of individuals seeking to submit requests with supporting documentation before USCIS publishes further information.

In the meantime, you can share information from CLINIC regarding eligibility and the parole program. You may also alert individuals who may be eligible to begin gathering the following documentation:

  • Evidence to establish that they have been continuously present in the United States for at least 10 years as of June 17, 2024;
  • Evidence of a legally valid marriage to a U.S. citizen as of June 17, 2024.

CLINIC will continue to monitor the timeline and notify our network as soon as details of the application process are announced.

Who May Benefit From Process Improvement to the Issuance of Employment-Based Nonimmigrant Visas?

DHS announced it will join the DOS to facilitate employment-based nonimmigrant visas more efficiently for eligible individuals, including DACA recipients and undocumented persons who have graduated from an accredited U.S. institution of higher education. Currently, many DACA recipients and others who are undocumented meet the general eligibility requirements for jobs that qualify for employment-based visas. However, because these persons do not have a lawful immigration status,1 they are not able to apply for an employment-based nonimmigrant visa within the United States. Instead, they would need to depart the United States and apply for a visa abroad. Since most DACA recipients have accrued 180 or more days of unlawful presence, their departure will trigger the three- or 10-year bars, thus necessitating a waiver under INA § 212(d)(3).2

The 212(d)(3) waiver analysis is purely discretionary, uncertain, and lengthy. Moreover, the process requires communication between different federal agencies, including the DOS (consulates or embassies abroad), U.S. Customs and Border Protection (CBP), and USCIS. Because of the risk of leaving the United States and the uncertainty with respect to the length of time abroad and outcome of adjudication, many persons and employers are unwilling to take advantage of this option. The DOS answered questions regarding this announcement on its website. According to their answers, there is no change in the process. Rather, DOS states that that upcoming policy updates will “clarify when consular officers should recommend that DHS grant a waiver of the applicant’s ineligibility” and “encourage consular officers to consider recommending expedited review of waiver requests in conjunction with certain nonimmigrant visa applications overseas.” DHS posits that clarifications to these policies will provide more confidence to employees and employers in seeking a more stable employment-based option and could potentially lead to a path to permanent residency or naturalization.

What’s Next?

CLINIC will continue to monitor this announcement and will notify our network after the federal administration publishes a Notice in the Federal Register regarding the new parole program and/or additional information becomes available regarding either part of the announcement. Be sure to Sign Up for Our Email Lists to stay informed about the announcement, training opportunities we offer, and tools we create for our network to use to assist clients.

1 DACA recipients are considered lawfully present as described in 8 C.F.R. § 1.3(a)(4)(vi) for purposes of eligibility for certain public benefits (such as certain Social Security benefits) during the period of deferred action. However, deferred action does not confer lawful immigration status upon an individual. See USCIS Frequently Asked Questions, Queston 1,
2 DACA recipients are not considered to be unlawfully present during the period when deferred action is in effect. However, it does not excuse any previous or subsequent periods of unlawful presence they may have. See Id.