At a glance
- On August 19, 2024, U.S. Citizenship and Immigration Services began accepting applications for the new parole in place (PIP) program for certain undocumented spouses and stepchildren of U.S. citizens.
- Successful applicants for parole in place may be able to apply for a green card without the need to depart the United States and potentially trigger a bar to returning to the United States.
- Before proceeding with a PIP application, prospective applicants should discuss the risks and benefits of the program with qualified immigration counsel.
The issue
Since August 19, undocumented spouses and stepchildren of U.S. citizens who qualify for the Biden Administration's new parole in place (PIP) program have been permitted to submit applications to the U.S. Citizenship and Immigration Services (USCIS).
If approved for PIP, the spouse or stepchild will be granted a period of up to three years to apply for permanent residence (a green card) within the United States through the adjustment of status process, instead of needing to depart and apply abroad at a U.S. consulate. Applying for a green card through the adjustment of status process can be a benefit to noncitizens as it can avoid the delays and uncertainties of consular processing and the potential of triggering of one of several possible bars to returning to the United States. If granted PIP, the individual will also be protected from removal and eligible to apply for parole-based work authorization for the duration of their PIP validity. Parole in place approval does not exempt the foreign national from the standard eligibility requirements and processes for a family-based green card application, including the approval of a Form I-130 or Form I-360 immigrant visa petition, and eligibility to adjust status under INA 245(a).
The PIP program is good news for eligible foreign nationals who might otherwise have been required to depart the United States and remain abroad for lengthy periods in order to attain U.S. permanent residence. However, the program may not be advisable for everyone. Those who are interested in applying for PIP should discuss the risks and benefits of the program with qualified immigration counsel before moving ahead.
The following are answers to frequently asked questions about the new PIP program, based on the official program Federal Register notice, the USCIS Keeping Families Together webpage devoted to the PIP program, and related resources. If you or your organization has questions about the new program, please contact your designated Fragomen professional.
ELIGIBILITY FOR PIP
Who is eligible for PIP?
Certain undocumented spouses and certain undocumented stepchildren of U.S. citizens may be eligible for PIP. Stepchildren can qualify for the program regardless of whether their noncitizen parent is also applying or eligible for PIP.
What are the eligibility requirements for undocumented spouses?
Undocumented spouses (or certain widowed spouses) of U.S. citizens may qualify for the new PIP program if they meet all of the following criteria:
- Present in the United States without admission or parole (this does not include individuals who last entered the United States on a visa and overstayed their I-94);
- Have a legally valid marriage to a U.S. citizen as of June 17, 2024 (or before that date, for widowed spouses);
- Have been continuously physically present in the United States since at least June 17, 2014 through the date of filing the PIP request;
- Have no disqualifying criminal history and pose no national security/public safety/border security concerns; and
- Otherwise merit favorable discretion by DHS.
What if the U.S. citizen spouse is deceased? Can a widow or widower qualify for PIP?
Yes, under certain conditions. The couple must have entered into a legally valid marriage before June 17, 2024 and the undocumented spouse must remain unmarried at the time of their PIP application. There are also additional requirements for a widowed spouse to remain eligible for a green card under the standard permanent resident process. Qualified immigration counsel can advise on whether a widowed spouse may be eligible to purse a PIP application and subsequent marriage-based green card.
What are the eligibility criteria for undocumented stepchildren?
Undocumented stepchildren of U.S. citizens may qualify for the PIP program if they meet all of the following criteria:
- Present in the U.S. without admission or parole (this does not include individuals who last entered the United States on a visa and overstayed their I-94);
- Have been continuously physically present in the United States since at least June 17, 2024 through the date of the filing of the PIP request;
- Have no disqualifying criminal history and pose no national security/public safety/border security threat; and
- Have had a stepchild relationship with the U.S. citizen as of
June 17, 2024. To qualify as a stepchild under the INA, the child
must have:
- been unmarried and under 21; and
- have been under age 18 when the marriage occurred that created the step- relationship
- Otherwise merit favorable discretion by DHS.
Must a stepchild's noncitizen parent also be eligible for PIP? Must parents and stepchildren apply together?
Stepchildren of U.S. citizens may apply for PIP independent of their noncitizen parent, as long as the stepchild meets the above eligibility criteria.
Each PIP applicant must submit a separate Form I-131F application to USCIS. If a spouse and stepchild are both applying under the program, the parent should submit their Form I-131F application first and the parent's Form I-131F receipt number should be listed where requested in the child's Form I-131F application. In this way, the two applications should be linked.
What about stepchildren who are 21 or older or who will turn 21 during the PIP process?
It is not entirely clear whether a stepchild who either turns 21 or gets married after June 17, 2024 – but before their PIP application is either filed or approved – would lose or terminate their PIP eligibility. The immigration community is seeking clarity from USCIS on this issue. However, it is clear that under the program, if the marriage between the noncitizen spouse and the U.S. citizen spouse is terminated either through divorce or death, the former stepchild may remain eligible for PIP as long as the parents' marriage was entered into on or before June 17, 2024.
PHYSICAL PRESENCE IN THE UNITED STATES
What is considered "continuous physical presence"? Do short trips outside the United States disqualify a potential applicant?
Spousal PIP applicants must show continuous physical presence in the United States since June 17, 2014 and stepchild applicants since June 17, 2024.
USCIS has clarified that certain brief, casual, and innocent absences from the United States will not interrupt the requirement of continuous physical presence in the United States. The agency describes a brief, casual, and innocent absence as one that took place prior to June 17, 2024, and:
- was short and reasonably calculated to accomplish the purpose for the absence;
- was not because of a departure under an order of exclusion, deportation, or removal;
- was not because of an order of voluntary departure, or an administrative grant of voluntary departure before the individual was placed in exclusion, deportation, or removal proceedings;
- the purpose of the absence and the individual's actions while outside the United States were not contrary to law; and
- the individual is not a threat to border security (apprehended while attempting to unlawfully enter the United States on/after Nov. 1, 2020, or apprehended in the United States after unlawfully entering after Nov. 1, 2020).
While an absence may not have broken continuity for the purpose of PIP eligibility, depending on the facts of the particular case, it may have triggered a three- or ten-year or permanent bar, which may render the individual ineligible to adjust status. A waiver may be available in some cases, but this is a complex area, so any absences should be reviewed by immigration counsel as part of a comprehensive review before moving forward on a PIP application.
What kinds of evidence can be used to establish an applicant's continuous physical presence? Does an applicant need to show proof of every day or month of presence in the United States?
Applicants are encouraged to provide as much documentation of their continuous physical presence period as is reasonably possible. USCIS recommends that applicants provide evidence for at least each year of continuous presence. There is no requirement that every day or month be specifically accounted for through direct evidence. The following is a non-exhaustive list of possible documentation:
- IRS tax transcripts;
- Rent receipts or utility bills;
- Deeds, mortgage statements, or rental contracts;
- Bank, credit card, or loan statements showing regular transactions;
- Insurance policies;
- Automobile license receipts, title, or registration;
- Hospital or medical records;
- School records (letters, report cards, etc.);
- Attestations to the applicant's physical presence by religious entities, unions, or other civic or community organizations;
- Official records from a religious entity confirming participation in a religious ceremony;
- Birth certificates for children born in the United States;
- Money order receipts for money sent into or out of the United States; or
- Any other document that shows that the applicant maintained continuous physical presence in the United States for the requisite time period.
USCIS will review the totality of the evidence submitted to determine whether the applicant has established that they were continuously physically present in the United States for the required period of time.
IMPACT OF CRIMINAL HISTORY ON ELIGIBILITY FOR PIP
What about applicants with a criminal history? Will this disqualify them from PIP?
Individuals with felony convictions, including felony DUI offenses, will be ineligible for the PIP program. In addition, certain specific offenses – including firearms offenses, aggravated assault, domestic violence, child abuse/neglect/abandonment, and controlled substance violations (other than simple possession of 30 grams or less of marijuana) – will be automatically disqualifying.
All other criminal convictions, except for minor traffic offenses, will result in a presumption of ineligibility for parole in place, but that presumption can be rebutted on a case-by-case basis by weighing the seriousness of the offense against positive factors.
I currently have criminal charges pending. Can I apply for PIP?
Individuals with any pending criminal charges will be ineligible to apply for PIP, regardless of the nature of the charges. Once there is a final disposition, however, the individual's case can be analyzed to determine whether the criminal issue is disqualifying.
OTHER REQUIREMENTS
How do I show that I meet the PIP requirement of meriting favorable discretion by DHS
Parole itself is an exercise of discretion by the immigration agencies to allow certain noncitizens to be present in the United States on a temporary, case-by-case basis. Under the PIP eligibility requirements, USCIS will require applicants to provide an affirmative written statement as to why they deserve favorable discretion in the form of PIP. USCIS will make a determination by weighing the totality of positive and negative factors that are in the record with respect to the individual. The agency has provided a non-exhaustive list of favorable discretionary factors it will consider in its discretion analysis, including:
- Advanced or young age;
- Community ties;
- Length of presence in the United States;
- Status as a parent or caregiver of a U.S. citizen child or elderly parent or in-law;
- Status as a caregiver for an individual with disabilities, including USC in-laws or siblings;
- Existence of a mental or physical condition requiring treatment or care in the United States;
- Status as a victim or witness to criminal activity or civil rights violation or labor rights violation under investigation by a labor agency;
- Impact on other family members, including those who are U.S. citizens and lawful permanent residents;
- Applicant or spouse's status as a current or former member of the U.S. military; and
- Other relevant information or factors.
Applicants must submit their written statement addressing discretionary factors in Form I-131F. They may also wish to submit documentation in support of their argument.
INTERACTION BETWEEN PIP AND OTHER IMMIGRATION ACTIONS
How might removal proceedings impact my PIP eligibility?
If you are currently in removal proceedings, but no removal order is in place, you may still be granted PIP, if otherwise eligible. In all cases, however, USCIS will review an applicant's removal history to determine whether previous or current removal proceedings or orders, or the circumstances surrounding the removal proceedings, may impact PIP eligibility. Having an unexecuted removal order in place will require an applicant to overcome a presumption of ineligibility for PIP. If you think or you know that you have a prior or current removal order, contact qualified immigration counsel to assess the impact before you move forward with a PIP application.
I was planning to apply for a family-based green card through consular processing and my Form I-601A Application for Provisional Unlawful Presence Waiver is currently pending with USCIS. Does this impact my eligibility for PIP?
If your Form I-601A is pending, you remain eligible to apply for PIP – in fact, USCIS has stated that it may prioritize the adjudication of Form I-131F applications for PIP applicants who have previously filed a Form I-601A. To avail yourself of this possible prioritization, you must record your Form I-601A receipt number where requested on the Form I-131F, and ensure that your biographical information matches in both applications.
Before moving forward with a PIP application, however, you should ensure that you wish to switch your green card process from consular processing to adjustment of status. If your PIP is approved and you file an adjustment of status application, your pending I-601A application or approved I-601A Waiver will be terminated upon the filing of the adjustment. If for some reason your adjustment of status application is then denied, you will be required to re-start the consular processing path, including by re-filing the Form I-601A application (with a current processing time of approximately three years). Seek immigration counsel to review your particular circumstances and to help you determine the most appropriate green card strategy.
If I am approved for PIP, does this mean my adjustment of status application will be approved?
No. It is important to note that a grant of PIP does not exempt the foreign national from the standard eligibility requirements and processes for a family-based green card application, including eligibility for and the filing of a Form I-130 (or Form I-360) immigrant visa petition, and eligibility to adjust status under INA 245(a).
The grant of parole in place removes one important barrier to adjustment of status for eligible undocumented individuals in the United States – the requirement to have been "admitted or paroled" into the United States on their last entry – by granting the individuals parole for up to three years. The PIP grantee's subsequent adjustment of status application will be subject to the full range of inadmissibility grounds and eligibility requirements. Therefore, it is critical that potential applicants seek advice from qualified counsel before deciding to move forward with a PIP application.
THE PIP APPLICATION PROCESS
What are the required forms and fees for a PIP application?
Each applicant for PIP must submit their application through the myUSCIS online filing system. The filing fee is $580; no fee waivers are available. Paper applications are not accepted.
What is the required documentation for a PIP application?
Evidence to support the PIP application must be submitted online with the Form I-131F, and must include the following:
- Proof of PIP applicant identity, which may include:
- Valid state or country driver's license or ID;
- Birth certificate with photo ID;
- Valid passport; or
- Any government-issued ID with applicant's name, DOB, and photo
NOTE: Expired ID documents may be provided, if they are provided in conjunction with other documents - Proof that spouse or stepparent was a U.S. citizen on (or in
the case of deceased U.S. citizen, before) June 17, 2024, as
evidenced by one of the following:
- Biographical page of current U.S. passport;
- Certificate of Naturalization;
- Certificate of Citizenship;
- Consular Report of Birth Abroad (CRBA); or
- U.S. birth certificate (if obtained U.S. citizenship through birth in the U.S.)
- Proof of relationship between the U.S. citizen and PIP
applicant:
- Spouses
- Current marriage certificate showing legally valid marriage took place or before June 17, 2024. (Common-law marriages may qualify if they were legally valid under the law of the location of the relationship as of June 17, 2024); and
- Evidence of the termination of any prior marriages of either party (divorce decree, annulment decree, death certificate, etc.)
- Stepchildren
- Birth certificate of stepchild listing noncitizen parent as the natural parent; and
- Evidence that legally valid marriage took place between the noncitizen parent and U.S. citizen stepparent on or before June 17, 2024, and that the child was under 18 at the time
- Spouses
- Arrest records and court dispositions of any arrests, charges, and convictions for the PIP applicant
- Evidence establishing continuous physical presence since either June 17, 2014 (spouses) or June 17, 2024 (stepchildren), as described above
What will happen after the PIP application is filed?
After filing a Form I-131F, some applicants will be required to attend a biometrics appointment at a local USCIS Application Support Center, where USCIS will collect the applicant's fingerprints, photo and signature in order to run criminal and background checks. Other applicants may not need to attend an ASC appointment, if USCIS is able to reuse unexpired biometrics already on file with USCIS from the applicant's prior immigration filings, to run the security checks.
While interviews with a local USCIS office are not part of the routine PIP process, USCIS reserves the right, on a case-by-case basis, to schedule any PIP applicant for an interview with a USCIS officer.
What is the expected processing time for PIP applications?
USCIS has not provided an estimated processing time for the Form I-131F. However, the agency has publicly stated that it will have the staffing and resources necessary to handle a high volume of the new PIP applications. In its Form I-131F Filing Guide, USCIS indicated that applicants may follow up on a pending Form I-131F application after 90 days, but this is not necessarily an indication of a projected processing time.
What document will I receive upon approval of my PIP application?
If your Form I-131F is approved, you will receive a Form I-797 Approval notice stating the PIP validity period (up to three years) and containing a copy of your newly issued I-94 record.
Will I be automatically eligible to work upon my PIP approval?
No. Only after your PIP is approved will you be eligible to apply for a parole-based employment authorization document (EAD) by filing Form I-765 with USCIS. You may file Form I-765 online or on paper; paper filings may be eligible for a fee waiver. Once you receive your EAD, you are authorized to work for the duration of the EAD validity.
After my PIP is granted, when can my immigrant visa petition and Form I-485 adjustment of status application be filed?
Once your PIP application is approved, your adjustment of status application (and Form I-130 or I-360 immigrant visa petition, if not already filed) may be filed at any time during the parole in place validity period. You must ensure that your adjustment application is filed before your PIP validity ends, as DHS does not anticipate a re-parole process. Further, the PIP program may be subject to legal challenge and/or to cancellation if a new presidential administration is elected in November. Prospective applicants should consult qualified immigration counsel to discuss the risks and benefits and the most appropriate timing for PIP-related and green card immigration filings.
If USCIS denies my PIP application, will I be placed into removal proceedings?
According to USCIS, an individual whose PIP application is denied will generally not be issued a Notice to Appear (NTA) in immigration court or have their case referred to Immigration and Customs Enforcement (ICE) for possible enforcement action based solely on the PIP denial. However, if the applicant is deemed to fall within the Department of Homeland Security's enforcement priorities, the government reserves the right to initiate enforcement proceedings. DHS gives enforcement priority to individuals deemed to be a threat to national security, public safety, or border security, or a combination of these threats. Individuals who receive an NTA or are otherwise referred to ICE for enforcement are strongly recommended to consult experienced immigration defense counsel.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.