Parole-in-Place for Spouses, Children and Parents of Military Personnel

Imagine this scenario: Melanie enters the United States without a visa in 2009. In 2016 she marries Donnie, a U.S. citizen. Donnie is on active duty with the United States Marines. Typically, because she entered the U.S. without a visa, Melanie would be required to return to her home country to apply for an immigrant visa even though she is married to a U.S. citizen. 

Under a program formalized by the Obama administration in 2013, however, Melanie may be able to file a petition in which she requests to be “paroled” into the United States. The catch is that this parole happens without her ever departing the United States. In essence, immigration officials are willing to pretend that she departs the United States and then returns with a visa. Once she is paroled into the United States, she is allowed to apply for adjustment of status (green card) within the United States. It’s a neat trick.

A parent of a U.S. citizen child who is over 21 can gain the same benefit. That is, parents who are in the U.S. but entered without a visa can be paroled into the United States when their over-21 child is or has been in the military.

The process is not automatic, so there is no guarantee that immigration officials will approve parole in every case. Plus, there are risks to the applicant, especially of the person has multiple unlawful entries, a criminal history, or has previously been ordered deported. However, if you are a U.S. citizen petitioner (spouse, parent, or over-21 child) who is in or has been in the U.S. military, it is worth exploring with an experienced immigration attorney. It can save the expense, stress, and uncertainty of returning to a person’s home country for consular processing.

What New Law?

Several people have asked me about a new law they heard takes effect August 29, 2016. What these people heard about is actually a new rule that the immigration agency issued that will help some families in the United States. However, the rule is of limited scope does not reflect a major change in U.S. immigration laws.

The rule expands the class of people who can apply for a “provisional waiver” inside the United States. As I discussed in a previous post, some people who are inside the United States are eligible to apply for an immigrant visa. However, often these people must depart the United States to receive the visa and, upon departing, trigger a 10 year penalty for their previous “unlawful presence” in the United States. A “waiver” of the unlawful presence penalty is required if the person does not want to spend 10 years outside the United States.

Beginning March of 2013, the Obama administration allowed some people to apply for this waiver before departing the United States. This was a tremendous advance in allowing families to remain together. Previously, my foreign clients often would have to spend several months in their home country waiting for the approval of the waiver. 

From March 2013 until August 29, 2016, the only people who could apply for the waiver from inside the United States were those who had a U.S. citizen spouse or U.S. citizen parents. These relatives are known as “qualifying relatives.” The August 29 rule expands the list of “qualifying relatives” to spouses and parents who are Lawful Permanent Residents.

Thus, the August 29 change allows foreign nationals to apply for a provision waiver from inside the United States if they have have spouse or parent who is a a Lawful Permanent Resident of the United States. The new rule also makes other important changes to the waiver process, but they are more technical than I care to get into here. You can read summaries on the government’s web page (uscis.gov).

In sum: While the new rule will be extremely helpful for those who are eligible, it does not reflect a sweeping change in U.S. immigration law. 

“But I’m a U.S. citizen!”

A perception I frequently encounter is that U.S. citizens can automatically get lawful permanent resident status for their spouse. Unfortunately, the law is not quite so simple.

A foreign national who wants to apply for permission to live permanently in the United States has to go through at least two steps. The first step is relatively straightforward. The U.S. citizen files a petition (Form I-130) to satisfy the U.S. Citizenship and Immigration Service (USCIS) of the basic facts: That the petitioner is a citizen; that the spouse is not a U.S. citizen; that they are legally able to marry; that they are legally married; and that marriage is bona fide. (Lawful permanent residents can also petition for a spouse, but this raises additional issues not addressed here.)

The second step is more complicated. If the foreign national entered the United States with inspection (that is, with a visa and inspected by a U.S. officer at a port of entry), then the foreign national may be able to apply for permanent resident status inside the United States. However, many factors can affect whether the person’s application will be approved: Do the USCIS officials think the applicant told the truth on every previous immigration application? Does the applicant have a criminal history or prior immigration violations? Does the U.S. citizen spouse make enough money to satisfy the Affidavit of Support requirement? These and many other issues can trip up an application. Being married to a U.S. citizen does not guarantee that an application will be approved.

Even more problematic is the foreign national who did not enter the United States with a visa. The penalty for entering the U.S. without a visa and remaining in the U.S. is severe and usually requires an additional application requesting that the government waive of the penalty. Many of these applications are denied. Again, simply being married to a U.S. citizen does not guarantee approval.

Finally, persons who entered without a visa typically must depart the United States and have their permanent resident status decided by a U.S. official at a consulate. Even at this stage — when families have risked all by leaving the U.S. to seek a visa — being married to a U.S. citizen does not guarantee that the application will be approved.

It is because of the complicated laws and harsh penalties that immigration attorneys provide a critical service. Applicants who do not have a thorough understanding of how the law applies to them can find themselves in serious immigration trouble. Even when married to a U.S. citizen.

The Supreme Court Accepts DAPA case

In November of 2014, the Obama administration announced a plan (called DAPA) to defer the deportation of some undocumented immigrants living in the United States. In early 2015 a federal judge in Texas stopped the program and a court of appeals kept the program halted. On January 19, 2016, the Supreme Court announced that it will hear arguments in the case, United States v. Texas.

I see three possible outcomes to this case: (1) The Supreme Court could reverse the lower court and allow the DAPA program to continue. (2) The Court could agree with the lower court decision and the DAPA program would, effectively, be killed. (3) The Court could send the case back to the lower court for some technical reason; any such delay would also serve to kill the DAPA program. Whatever the outcome, we should know by May or June 2016.

If the Court does not stop the program, then immigration officials should be able to start accepting DAPA applications later this summer. The basic requirements are: (1) the immigrant has been residing continuously in the United States since at least January 1, 2010; (2) the immigrant has at least one U.S. citizen child born before November 20, 2014; (3) and the immigrant has no significant criminal history. The administration has stated that, under DAPA, it would issue work authorization documents to qualified immigrants.

If you want to dig into the legal arguments and the history of the case, I suggest SCOTUSblog, which provides helpful information and analysis of pending Supreme Court cases. Here’s the link: http://www.scotusblog.com/case-files/cases/united-states-v-texas/.

A Cynical Start to 2016

The New Year has brought a new level of fear and concern among many people who contact me. Since the beginning of this year, Immigration and Customs Enforcement (ICE) officers have been conducting a series of raids across the Carolinas, Georgia, and other parts of the United States. The government’s public announcements state that the agents are carrying out the administration’s immigration priorities as outlined in a November 20, 2014, memorandum. 

That memorandum identifies several categories of individuals as high priorities for removal. Understandably, the administration places terrorists, gang members, and serious criminals in the highest category for removal. However, another high priority category includes those who entered the United States unlawfully after January 1, 2014. Due to current social conditions in Central America, many of these recent entrants are individuals trying to escape violence plaguing their countries. It is this group that has been coming to me with questions: Why am I being targeted? Can I stay in the United States? Will they put me in jail? What if I think I will be harmed if I return to my country?

These are all good questions that, unfortunately, have no easy answers.

Deferred Action for Childhood Arrivals (DACA) and Foreign Travel

The U.S. Citizenship and Immigration Services (USCIS) has created a process to allow certain DACA recipients to travel internationally. The process is called Advance Parole and USCIS can approve it for humanitarian, educational, or employment purposes.

Most people who have contacted me seek Advance Parole for humanitarian reasons. This often means the person needs to visit a sick family member or attend the funeral of a family member. But Advance Parole is also available for students who want to study abroad or workers who need to travel abroad as part of their job.

If approved, you must carefully follow the instructions on the Advance Parole document since the failure to travel during the allowed times can affect your DACA renewal in the future. There are afew others risks as well, so I strongly recommend that DACA recipients meet with an experienced immigration attorney before applying for Advance Parole. 

If it works for you, though, Advance Parole can provide an important opportunity to be with your family during a major life event or it can help enrich with your educational or work experiences.

“Mr. Phipps, will you help me fill out these forms?”

I am sometimes asked if I can be hired to “fill out the forms.” A lawyer cannot ethically do this. If a person needs to hire an attorney, the attorney’s role is to evaluate possible legal complications with the case and to guide the case through the convolutions that many immigration cases take. Filling out a form, without a full review of the case, is not an appropriate role for an attorney.

At times, there are straightforward situations in which a consultation may be enough for me to explain the process and the potential clients may be able to complete the paperwork on their own. However, most immigration processes in the United States are neither simple nor straightforward. If you are paying for immigration-related services, you should be paying for legal representation by an attorney who is experienced with the U.S. immigration system.

Postscript: Every once in awhile I have people tell me that they paid a fee to download a U.S. immigration form. These forms are available at uscis.gov for free. Do not ever pay for a free form. You may need to pay for legal representation to navigate the laws that led to those forms, but there is never a reason to pay for the forms themselves.

Citizenship Conundrums

It may surprise readers to learn that one of the trickiest legal issues for the immigration attorney is determining when a person is a U.S. citizen. Some cases are easy: A person born inside the United States is a citizen of the United States. For many others, though, confusion reigns.

Consider this surprisingly common scenario: A child is born in Germany in 1975 to a U.S. citizen father and a German mother. The parents are not married. Soon after the birth of the child, the U.S. citizen parent returns to the United States and the child loses contact with her father. Was this child a U.S. citizen at birth? One important fact in determining the citizenship of the child is how long the father lived in the United States prior to the birth of the child. If the issue of citizenship arises after two or three decades, how does the child prove her citizenship? 

Or: A person immigrates to the United States as a lawful permanent resident with her parents in 1980. The mother becomes a naturalized U.S. citizen in 1986, but the father does not become a citizen until 1989. Several seemingly minor factors affect whether the child is a citizen: The age of the child when the dad naturalizes; whether the parents are married; and, if the parents are not married, which parent has legal custody of the child.

To make it worse, Congress tinkers with the law every few years, so a person’s citizenship also depends on changes in the law over time. Thus, a person born in 1975 might not be a citizen while someone born in the exact same circumstances in 2002 may be a U.S. citizen.

So, if are having trouble figuring out your status, you are not alone. Careful and patient examination of the law is required to determine the correct answer to the critical question of citizenship.

Postscript: A common error I hear is the use of the term “citizen” when someone means “resident.” I most frequently hear this error coming from the lips of native-born U.S. citizens saying something to the effect of: “I want to help my friend become a citizen.”

A person who is allowed to immigrate to the United States and who intends to permanently live in the U.S. may be granted “lawful permanent resident” status. This person remains a citizen of her home country who is allowed to live and work in the United States. After living in the U.S. for a certain length of time, that person can apply to be a U.S. citizen through a process called “naturalization.” A person cannot normally apply directly for citizenship without first being a lawful permanent resident for a number of years. (As with many facets of the law, there are some limited exceptions to this rule, in particular: permanent resident children under the age of 18 whose parents become citizens; and certain active duty military members).

"Mr. Phipps, I have a friend . . . "

I am frequently asked by U.S. citizens if they can sponsor a friend or co-worker who is already in the United States. The answer to this question is often “no,” and the reasons behind it highlight some of the problems with current U.S. immigration law.

Problem # 1: There simply is no visa to apply for. If the person is already in the U.S. in unlawful status (having entered without a visa or having overstayed a visa), the law creates several penalties that prevent many people from changing to a lawful status. For example, assume a U.S. citizen has a co-worker who is an experienced brick mason. The brick mason entered the United States without a visa 10 years ago when he was 20 years old. He is not married and has no children. He has no parents or siblings in the United States with lawful immigration status. The brick mason’s skills, willingness to work, and an offer of employment are not enough to secure a visa or work permit. There is no “line” he could get in, there is no form to fill out or fee to pay. This person simply cannot change from “unlawful” to “lawful” status. (But see “It’s Complicated” below).

Problem # 2: The penalties are harsh. In many cases, a person who is in the U.S. and wants to apply for a visa must first leave the United States. However, the departure from the U.S. may trigger penalties that prevent the person from returning to the U.S. for several years. While these penalties can sometimes be forgiven, often they cannot. 

Problem # 3: It’s Complicated. The U.S. immigration laws have been amended so many times over the past 50 years that the result is a patchwork of complicated provisions. On rare occasions, I discover a person falls into an obscure category that makes the person eligible for a benefit. Thus, even in the example given above, I would ask the brick mason several other questions before determining if he were categorically ineligible for a visa. While the odds are stacked against this person, it is worth consulting with an experienced immigration attorney to see if any options are available.

How to Decide on an Immigration Attorney

I am constantly amazed when clients hire me after a 30 minute consultation without ever asking several basic questions about me. I believe an important part of an initial consultation should involve you learning about me. Following are questions I think every client should ask when meeting with a prospective immigration attorney.

How many cases like this have you handled in the past year? If you are prepared to pay hundreds or thousands of dollars for representation, it is appropriate to ask how many of those types of cases the lawyer handled in the previous year. If the lawyer has immigration as only a small part of his or her practice, it is fair for you to know this information when deciding who to hire.

Are you licensed to practice law in this state? Because attorneys can practice immigration law across state lines and because many non-attorneys try to provide immigration services, it is entirely appropriate to ask to see the attorney’s license. This will tell you if the person is an attorney and what state licensed the attorney. 

I believe that people needing immigration representation should work only with a licensed attorney. Immigration law is too complex and the consequence too severe for a person to pay someone who is not a lawyer. In addition, you should consider whether it is wise to work with an attorney who is not licensed in the state where you live. It is often legally permissible for an attorney licensed in one state to represent clients in a different state. However, the client should consider how available the out-of-state lawyer will be to clients in a remote state.

What will the cost be and will it be in writing? Clients should expect the cost and scope of representation to be in writing. It is appropriate to ask detailed questions about the fee arrangement: Is this a flat fee? Will there be other fees in the future? If I hire you on an hourly basis, what is your hourly rate? How much will it cost each time I visit or call you in the future? Don’t be afraid to ask questions about money.

How long have you been doing immigration work? While new attorneys can be very competent and, in fact, are often motivated to work hard to earn your trust, the level of experience of an attorney is an important consideration when deciding who to hire.

Have you ever been punished or sanctioned by your state bar? Much information about lawyer discipline is now available on-line. For example, you can look me up here: http://www.scbar.org/Bar-Members/Member-Directory. You should ask about and investigate whether the attorney has ever been disciplined by the licensing body.

If approached in a professional manner, I think you will find many attorneys appreciate the client who wants to candidly address these questions.