29 Nov Parole in Place for Military Personnel and relatives
By Atty. Crispin Caday Lozano
On November 23, 2016, the DHS issued a Policy Memo (PM) clarifying benefits for members of the Armed Forces and their relatives. This includes Parole in Place and Deferred Action which will be discussed below.
I. Parole in Place for Families of Certain Military Personnel and Veterans
USCIS has authority to grant parole to noncitizen applicants for admission, including those residing in the United States (through “parole in place”), on a case-by-case basis for urgent humanitarian reasons or significant public benefit. INA § 212(d) (5) (A), 8 U.S.C. § 1182(d) (5) (A). The 2013 PM provides guidance on granting parole, on a discretionary case-by-case basis, for certain spouses, children, and parents of, among others, individuals who “previously” served on active duty or in the Selected Reserve of the Ready Reserve. This PM clarifies that such language in the 2013 PM is meant to include former designated military personnel (who were not dishonorably discharged) whether they are living or deceased. The close family members of such individuals, who served and sacrificed for our Nation, are deserving of consideration for a favorable exercise of discretion on a case-by-case basis in accordance with the 2013 PM. This is true regardless of whether the former military service members are living or deceased.
In addition, the 2013 PM contains multiple references to the “children” of current or former military personnel. Under the INA, the term “child” is limited to individuals who are unmarried and under the age of 21. See INA § 101(b) (1), 8 U.S.C. § 1101(b) (1). This PM seeks to expand on the provisions in the 2013 PM by replacing all references to “children” in the 2013 PM (and the corresponding provisions in the AFM) with the term “sons and daughters.” This change would further expand the provisions in the 2013 PM to the adult and married sons and daughters of covered military personnel and veterans. Because covered military personnel and veterans generally will be U.S. citizens or lawful permanent residents (or, in the case of MAVNI, soon-to-be U.S. citizens or lawful permanent residents), their sons and daughters will often be on paths to lawful permanent resident status and eventual citizenship. See INA § 203(a), 8 U.S.C. § 1153(a). Parole in place or deferred action would therefore serve as a temporary bridge for such sons and daughters while they apply for and await adjudication of their applications for lawful permanent resident status. Moreover, important family relationships continue to exist even after children turn 21 or marry. The same morale, deservedness, and preparedness rationales articulated in the 2013 PM with respect to military personnel and their children continue to apply when such children turn 21 or marry.
II. Deferred Action Requests by DEP Enlistees and the Families of Military Personnel, Veterans, and DEP Enlistees
As in all deferred action determinations, USCIS will make case-by-case, discretionary judgments based on the totality of the evidence. In doing so, USCIS will weigh and balance all relevant considerations, both positive and negative. Certain factors are of particular relevance to the exercise of that discretion when deferred action requests are submitted by DEP enlistees or by the family members of military personnel, veterans, or DEP enlistees. Particularly strong positive factors specific to such requests include, but are not limited to:
- Being a DEP enlistee, including through the Military Accessions Vital to the National Interest (MAVNI) program (even if the enlistee’s authorized period of stay expires or terminates while in the DEP);
- Being the spouse, parent, son, or daughter of a MAVNI or other Delayed Entry Program (DEP) enlistee (even if present in the United States without an authorized status); and
- Being an individual who would be eligible for parole under the 2013 PM, as clarified and amended by the present PM, but for the fact that such individual has already been admitted.
The presence of one or more of the preceding factors does not guarantee a grant of deferred action, which constitutes only a favorable exercise of immigration enforcement discretion, but may be considered a strong positive factor weighing in favor of granting deferred action as a matter of discretion. The ultimate decision rests on whether, based on the totality of the facts of the individual case, USCIS finds that the positive factors outweigh any negative factors that may be present and that a favorable exercise of enforcement discretion is warranted.
If an individual described in any of the three bullets above is approved for deferred action in the exercise of discretion, the period of deferred action should be authorized in two-year increments; USCIS may consider requests for renewal of deferred action as appropriate.
In addition, individuals who have obtained parole in place or deferred action are eligible to apply for work authorization for the period of parole or deferred action if they can demonstrate economic necessity.
- On October 21, 2016, we received an approval of N-400 naturalization for a client who has child support and tax debts issues by submitting documents proving good faith compliance.
- On October 20, 2016, we received an approval from USCIS for adjustment of status for a client who has hearing disability.
- On September 12, 2016, we received an approval from Immigration Court for a waiver of misrepresentation for a client who entered as single but actually married at date of entry.
- On September 1, 2016, we received an approval of naturalization from USCIS for two clients who has unpaid taxes but with IRS agreement.
- On August 11, 2016, we received an approval from USCIS of a green card based on employment without any interview.
- On July 29, 2016, we received an approval of Naturalization from USCIS for an alien who has an approved waiver for entering as single but actually married.
- On July 21, 2016, we received an approval of Naturalization from USCIS for an alien who has an approved waiver for using a different name.
- On July 11, 2016, we received an approval of I-360 self petition by abused spouse from USCIS.
- On June 15, 2016, we received an approval of I-601 waiver for a client who made a misrepresentation when she entered on an A2 visa under another person name.
- We have more success stories at our website at crispinlozanolaw.com