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The Biden Administration’s Upcoming Executive Order - "Parole-In-Place" Announcement

On June 18, President Joe Biden announced he will sign an Executive Order that will allow certain spouses of United States citizens to apply for “parole-in-place" from the Department of Homeland Security (DHS). This program, if finalized and released as an Executive Order as planned, will allow up to 550,000 people to receive temporary protections and work permits in the United States, and may eventually allow them to apply for lawful permanent resident (LPR) status (a/k/a a "green card") through their spouses without leaving the United States and/or risking years of separation from their families.

Current U.S. legislation permits U.S. citizens to seek permanent residency for their non-citizen spouses. However, the challenges associated with this process have hindered many undocumented immigrants from attaining the legal status for which they qualify. Numerous eligible candidates are compelled to depart the U.S. and return to their home countries for consular interviews, with some never coming back. The Biden administration's innovative parole-in-place initiative addresses the primary obstacles by providing qualified individuals with a type of "lawful admission" to the U.S. without the need to physically leave, thereby enabling them to pursue an adjustment of status (obtain a green card) while remaining in the U.S. Although the program's future implementation may be uncertain due to legal issues, those who have received parole through the program may find a smoother path to achieving lawful permanent residency in the United States.

Spouses of U.S. citizens are typically qualified to apply for an immigrant visa as immediate relatives of citizens, enabling them to obtain legal permanent residency and eventually pursue U.S. citizenship after a specified period. Nevertheless, individuals who have entered the United States without proper inspection, such as by crossing the U.S./Mexico border without prior authorization, face significant challenges in securing permanent residency through their spouses. The main option available to them is excessively bureaucratic and risky, leading to many being unable to obtain the green cards for which they are technically eligible. Consequently, around 1.2 million individuals are married to U.S. citizens but lack formal immigration status, despite theoretically having a pathway to green cards.

Under federal law, some immigrants—namely, those who have already been “inspected and admitted” (generally, anyone who entered through an official port of entry) or “inspected and paroled” into the U.S.—can apply to adjust their status to permanent residency without having to depart the country to attend an immigrant visa interview at a U.S. embassy or consulate abroad. However, immigrants who entered without inspection do not have this option. They must leave the United States, go to a consulate abroad, and obtain a new immigrant visa to reenter.

Once they leave the United States to go to a consulate, however, they often trigger a years-long bar on legally reentering the country to be reunited with their families. This is because of a 1996 law that imposed bars of up to ten years on anyone who has been “unlawfully present” in the United States for more than one year, preventing them from receiving visas for which they would otherwise be eligible.

Immigrants who are married to U.S. citizens have the option to request a waiver (an I-601A waiver) of the bar, enabling them to obtain their immigrant visas and return to the U.S. as permanent residents, provided they can prove that their citizen spouses would face "extreme hardship" due to a prolonged separation. It is important to note that approval of the waiver is not guaranteed, making it risky to leave the U.S. before receiving approval. To address this issue, immigrants can apply for "provisional" waivers before departing the U.S. However, as of April 2024, the U.S. government was taking over three (3) years to process these waivers, in addition to the time required for the underlying immigrant visa application and consulate visit arrangements.

The U.S. immigration law authorizes the executive branch to offer "humanitarian parole" to individuals who do not have a legal basis to enter or stay in the U.S., provided that the government deems the parole necessary for urgent humanitarian reasons or to serve a significant public interest. Humanitarian parole enables recipients to temporarily stay in the U.S. for a specified period, ranging from a few days to several years. Those granted parole may seek work authorization if needed to sustain themselves while in the country. When humanitarian parole is given to individuals already present in the U.S., it is referred to as "parole-in-place." This is frequently observed within the realm of family members of the men and women serving in our military and armed forces.

Someone who has been granted humanitarian parole, including parole-in-place, counts as having been “inspected and paroled” into the United States under federal law. This means that parolees who are eligible to apply for green cards through their spouses will be able to do so by applying for adjustment of status within the United States, without having to risk triggering reentry bars by leaving the country.

Importantly, even if someone’s particular grant of parole (including the protection from deportation and work permit that may be attached to it) expires or is revoked in future, they are still considered to have been paroled into the United States under immigration law. This means that even if the new parole program is struck down in court or is ended by a future president, those who have already been granted parole-in-place under the program will likely still be eligible to apply for green cards without leaving the country and risking separation.

To receive parole-in-place under the new Biden program, families will likely have to submit a new application using a form which has not yet been published. The June 18 announcement anticipates that applications will become available later this summer.

Without the form and accompanying Federal Register notice, the public does not know exactly who will be eligible for the new parole program. However, the June 18 announcement specified that the new program will be available only to people who:

  • Have continuously resided in the United States since June 17, 2014;

  • Were physically present in the United States on June 17, 2024;

  • Have been legally married to a U.S. citizen as of June 17, 2024;

  • Entered the United States without admission or parole and do not currently hold any lawful immigrant or nonimmigrant status;

  • Have not been convicted of any disqualifying criminal offense;

  • Do not pose a threat to national security or public safety; and

  • Merit a favorable exercise of discretion.

Applicants will have to provide documentation proving that they meet the above criteria alongside their application form and pay a fee. However, it is not yet known exactly what forms of documentation will be accepted and what the fee will be.

Importantly, while the DHS announcement states that the parole program will be available only to people who are otherwise eligible for permanent residency, the list of criteria provided by DHS does not specify this. If this is not an explicit criterion for the parole program, some immigrants might be able to benefit for parole protections and work permits who are not eligible to convert those protections to permanent residency. For example, some individuals may be barred from adjusting their status to permanent residency if they were previously deported and then reentered the country without inspection.

The White House estimates that approximately 500,000 spouses of U.S. citizens may meet these criteria and will thus be eligible to apply for the new parole program. Additionally, children of applicants who are stepchildren of U.S. citizens may also be eligible for parole with their parents, adding 50,000 more potential beneficiaries.

If the Executive Order goes through, parole-in-place will give these individuals a genuine opportunity to become permanent residents of the US, live, work and remain here lawfully with their families and loved ones forevermore. It will provide a much-needed solution and answer for hundreds of thousands of worthy individuals whose dream is to simply become legal and remain in the United States with their loved ones.


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