JULY 2017



Life after entry without inspection (Part 1)



By ALBERTO GONZALES

Immigration Attorney

(708) 916-3077

Note: Nothing in this article is intended to create an attorney-client relationship. This article is not intended to constitute legal advice and should not be relied upon in lieu of consultation with an immigration attorney.

The Immigration Service (USCIS) has approved Maria’s I-130 Immigrant Petition for her husband, Jose. Maria is a U.S. citizen on active duty in the military. Ten years prior, Jose, as an undocumented immigrant, crossed the border from Mexico into the U.S. without presenting himself to a U.S. immigration officer. This entry is called “entry without inspection” (EWI). Can Jose get his green card without having to depart the U.S.?

Adjustment of status (AOS) is the process in which a person applies for U.S. permanent residence (green card status) without leaving the U.S. The alternative to AOS is to apply for an immigrant visa before a U.S. consulate/embassy abroad. However, if such person has been unlawfully present in the U.S. for more than 180 days, departing the U.S. may cause that person to be barred from returning for many years. Thus, AOS is the preferred way of obtaining a green card in many circumstances.

According to Section 245(a) of the Immigration and Nationality Act, only a person who has been “inspected and admitted” or “paroled” or a Violence Against Women Act approved self-petitioner may apply for AOS. EWI is not considered being inspected and admitted or paroled. Fortunately, this “admitted or paroled” rule has some exceptions.

One exception is “Parole in Place” (PIP), which USCIS formally instituted in 2013. PIP is a procedure to grant parole to immediate relatives of military personnel and veterans, and who may have entered the U.S. without inspection. To be eligible for PIP, a person must: (1) be physically present in the U.S.; and (2) be the spouse, parent, or child of a U.S. military personnel or veteran. The person who receives PIP is then able to meet the “admitted or paroled” requirement of Section 245(a) and to pursue AOS (if eligible).

Please keep in mind that the grant of PIP is discretionary. This means that even if a person meets the criteria to receive PIP, USCIS is not obligated to grant PIP.

Instead, the USCIS balances positive and negative factors in deciding whether to grant PIP. Positive factors include hardship to a military or veteran family member, family and community ties in the U.S., etc. Negative factors include the person’s criminal record, history of immigration violations, gang membership, etc. Accordingly, PIP is generally granted to an eligible individual who has no criminal record and other serious adverse factors.

Finally, PIP is only meant to remedy the “admitted or paroled” requirement of AOS, and does not remedy other bars to AOS (such as entry on a fraudulent visa or on a crewmember visa, criminal history, etc.)

Source consulted: Stock, Margaret D., Parole in Place and Other Immigration Benefits for Military Family Members: an Update, 16-02 IMMIG’N BRIEFINGS 1 (Feb. 2016).


 

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