DHS annonce l’octroi d’un statut de protection temporaire au Libéria, à la Guinée et à la Sierra Leone
WASHINGTON— En raison de l’épidémie due au virus Ebola en Afrique de l’Ouest, le secrétaire à la sécurité intérieure, Jeh Johnson, a annoncé sa décision d’octroyer au Libéria, à la Guinée et à la Sierra Leone le statut de protection temporaire (Temporary Protected Status, ou TPS) pour une durée de 18 mois. Par conséquent, les ressortissants qualifiés du Libéria, de la Guinée et de la Sierra Leone résidant à l’heure actuelle aux États-Unis peuvent faire la demande du TPS auprès des Services américains de citoyenneté et d’immigration (USCIS). Les avis du Registre fédéral fournissent les détails et les démarches à suivre pour obtenir le TPS et sont disponibles à www.uscis.gov/tps.
Les désignations de TPS pour les trois nations prennent effet le 21 novembre 2014 et resteront en vigueur pendant 18 mois. Les désignations signifient que les ressortissants qualifiés du Libéria, de la Guinée et de la Sierra Leone (et les apatrides qui résidaient habituellement dans l’un de ces trois pays) ne seront pas renvoyés des États-Unis et sont autorisés à travailler et à obtenir un Document d’autorisation à l’emploi (EAD). La période de 180 jours d’inscription au TPS commence le 21 nov. 2014 et se poursuivra jusqu’au 20 mai 2015.
Pour être qualifiés au TPS, les candidats doivent montrer qu’ils sont en mesure de satisfaire toutes les conditions d’éligibilité, incluant qu’ils « résident continuellement » aux États-Unis depuis le 20 nov. 2014 et qu’ils sont « continuellement et physiquement présents » aux États-Unis depuis le 21 nov. 2014. Les candidats doivent également subir des contrôles de sécurité approfondis. Ceux qui possèdent certains éléments de casier judiciaire ou qui posent une menace à la sécurité nationale ne sont pas éligibles au TPS. Les conditions d’éligibilité sont décrites en détails complets dans les avis du Registre fédéral et sur la page Web TPS à www.uscis.gov/tps
Les Libériens qui font actuellement l’objet de l’extension de deux ans d’un Départ forcé reporté (Deferred Enforced Departure, ou DED) peuvent faire la demande de TPS sur la base du Mémoire du Président Obama du 26 sept. 2014. S’ils ne déposent pas leur candidature pour le TPS dans les limites de la première période d’inscription de 180 jours, ils risquent de devenir inéligibles au TPS parce qu’ils auront raté la première période d’inscription. Les Libériens faisant l’objet d’un DED et qui possèdent déjà ou ont déjà déposé leur demande d’EAD n’ont pas besoin de faire par ailleurs la demande de celle qui est liée à la présente désignation de TPS. Toutefois, ceux à qui le TPS est accordé pourront demander un EAD lié au TPS à une date ultérieure tant que la désignation de TPS demeurera en vigueur pour le Libéria.
Les candidats peuvent demander à l’USCIS de les exempter de certains frais, ou de tous les frais, sur preuve de leur incapacité de paiement, en remplissant le Formulaire I-912, Demande d’exemption des frais, ou en remettant une demande par écrit. Les demandes d’exemption des frais doivent être accompagnées d’une documentation à l’appui. L’USCIS refusera toute demande de TPS non accompagnée du paiement des frais d’enregistrement ou d’une demande d’exemption correctement documentée.
Tous les formulaires de l’USCIS sont gratuits. Les candidats peuvent télécharger ces formulaires à partir du site Web de l’USCIS à www.uscis.gov/formulaires ou en faire la demande par téléphone en appelant l’USCIS au 1-800-870-3676 (appel gratuit).
Les candidats souhaitant s’informer du statut de leurs cas individuels peuvent consulter Le statut de mon dossier en ligne ou appeler le Centre national d’assistance clientèle de l’USCIS au 1-800-375-5283 (ATS 1-800-767-1833).
Pour des renseignements complémentaires sur l’USCIS et ses programmes, veuillez consulter www.uscis.gov ou nous suivre sur Twitter (@uscis), YouTube (/uscis), Facebook(/uscis), et le blog de l’USCIS, The Beacon.
SUBJECT: Parole of Spouses, Children and Parents of Active Duty Members of the U.S. Armed Forces, the Selected Reserve of the Ready Reserve, and Former Members of the U.S. Armed Forces or Selected Reserve of the Ready Reserve and the Effect of Parole on Inadmissibility under Immigration and Nationality Act § 212(a)(6)(A)(i)
This policy memorandum (PM) amends Chapter 21.1 of the Adjudicator’s Field Manual (AFM) to ensure consistent adjudication of parole requests made on behalf of aliens who are present without admission or parole and who are spouses, children and parents of those serving on active duty in the U.S. Armed Forces, in the Selected Reserve of the Ready Reserve or who previously served in the U.S. Armed Forces or Selected Reserve of the Ready Reserve.
This PM also amends AFM Chapter 40.6 concerning the effects of parole on an alien’s inadmissibility under Immigration and Nationality Act (INA) § 212(a)(6)(A)(i). This amendment to AFM chapter 40.6 applies to any paroled alien, not only to the family members of Armed Forces personnel.
This PM applies to and is binding on all U.S. Citizenship and Immigration Services (USCIS) employees.
INA §§ 212(a)(6)(A)(i), 212(d)(5)(A), 235(a), and 245(a), (c); 8 U.S.C. §§ 1182(a)(6)(A)(i),1182(d)(5)(A), 1225(a), and 1255(a), (c)
Parole of Spouses, children and parents of Armed Forces personnel
In partnership with the Department of Defense (DoD), USCIS has launched a number of initiatives to assist military members, veterans, and their families to navigate our complex immigration system and apply for naturalization and other immigration services and benefits.
This PM builds on these important initiatives as there is concern within DoD that some active members of the U.S. Armed Services, individuals serving in the Selected Reserve of the Ready Reserve and individuals who have previously served in the U.S. Armed Forces or Selected Reserve of the Ready Reserve face stress and anxiety because of the immigration status of their family members in the United States.
Military preparedness can potentially be adversely affected if active members of the U.S. Armed Forces and individuals serving in the Selected Reserve of the Ready Reserve, who can be quickly called into active duty, worry about the immigration status of their spouses, parents and children.
Similarly, our veterans, who have served and sacrificed for our nation, can face stress and anxiety because of the immigration status of their family members in the United States. We as a nation have made a commitment to our veterans, to support and care for them. It is a commitment that begins at enlistment, and continues as they become veterans.
Responding to these and similar concerns by several Members of Congress about soldiers and veterans, the Secretary of Homeland Security on August 30, 2010 emphasized the Department’s commitment to assisting military families. The Secretary identified several of the discretionary tools that the Department utilizes “to help military dependents secure permanent immigration status in the United States as soon as possible.” Among the tools listed was “parole … to minimize periods of family separation, and to facilitate adjustment of status within the United States by immigrants who are the spouses, parents and children of military members.” 1
INA § 212(d)(5)(A) gives the Secretary the discretion, on a case-by-case basis, to “parole” for “urgent humanitarian reasons or significant public benefit” an alien applying for admission to the United States. Although it is most frequently used to permit an alien who is outside the United States to come into U.S. territory, parole may also be granted to aliens who are already physically present in the U.S. without inspection or admission. This latter use of parole is sometimes called “parole in place.” The legal authority for granting parole in place was formally recognized by the then-Immigration and Naturalization Service (INS) General Counsel in a 1998 opinion.2 That opinion was endorsed the following year in a memorandum by the then-INS Commissioner.3 In 2007, the then-DHS General Counsel concurred with the 1998 INS General Counsel’s opinion in relevant part. 4 The basic authority for parole in place is INA § 212(d)(5)(A), which expressly grants discretion to parole “any alien applying for admission to the United States.” INA § 235(a)(1), in turn, expressly defines an applicant for admission to include “an alien present in the United States who has not been admitted.”
This PM addresses two related issues. The first is a policy question: Should parole in place be granted to certain family members of active duty members of the U.S. Armed Forces, individuals in the Selected Reserve of the Ready Reserve, or individuals who previously served in the U.S. Armed Forces or the Selected Reserve of the Ready Reserve? The second is a legal question: Does parole in place (for military family members or anyone else) affect whether an alien is inadmissible under INA § 212(a)(6)(A)(i)? That provision is discussed below and is critical to determining the alien’s eligibility for adjustment of status under INA § 245.
A. Parole in Place for Spouses, Children and Parents of Active Members of the U.S. Armed Forces, Individuals in the Selected Reserve of the Ready Reserve or Individuals Who Previously Served in the U.S. Armed Forces or the Selected Reserve of the Ready Reserve
As noted above, the decision whether to grant parole under INA § 212(d)(5)(A) is discretionary. Generally, parole in place is to be granted only sparingly. The fact that the individual is a spouse, child or parent of an Active Duty member of the U.S. Armed Forces, an individual in the Selected Reserve of the Ready Reserve or an individual who previously served in the U.S. Armed Forces or the Selected Reserve of the Ready Reserve, however, ordinarily weighs heavily in favor of parole in place. Absent a criminal conviction or other serious adverse factors, parole in place would generally be an appropriate exercise of discretion for such an individual. If USCIS5 decides to grant parole in that situation, the parole should be authorized in one-year increments, with re-parole as appropriate.
B. Effect of Parole on Inadmissibility under INA § 212(a)(6)(A)(i) and Adjustment of Status under INA § 245
INA § 212(a)(6)(A)(i) contains two closely related inadmissibility grounds. The first ground relates to the alien who is “present in the United States without being admitted or paroled.” This inadmissibility ground generally covers those who entered the United States without inspection (and are still in the United States). Aliens who have entered the United States without inspection, while not “arriving aliens” as defined in 8 C.F.R. § 1001.1(q), are eligible for parole because they remain applicants for admission.6
The second inadmissibility ground in section 212(a)(6)(A)(i) relates to the alien “who arrives in the United States at any time or place other than as designated by the [Secretary of Homeland Security].” Where the first inadmissibility ground leaves off, this one picks up. Using the present tense (“arrives”), it covers the alien who is in the process of entering U.S. territory without inspection. As is true throughout section 212(a), the choice of tense (“arrives”) is clearly deliberate. In enacting the various inadmissibility grounds in section 212(a), Congress was very specific as to whether the individual grounds cover past, present, or future events, or some combination thereof.7 In particular, when Congress intended that a ground cover both past and present events, it said so explicitly.8 In contrast, in the second prong of section 212(a)(6)(A)(i), Congress used only the present tense. Moreover, if “arrives” were read as if it said “arrives or previously arrived,” so as to cover any alien who had ever entered at an undesignated time or place, then the first prong of section 212(a)(6)(A)(i) would be practically superfluous. Ordinarily, the only way for an alien to be present in the United States without admission or parole, as the first prong requires, is to have entered without inspection at some point in the past.9 Those individuals would already be covered by the second prong if “arrives” were read to mean “arrives or previously arrived.”
The two inadmissibility grounds contained within section 212(a)(6)(A)(i) are thus complementary. Together, they capture aliens who have already achieved entry without inspection and those who are in the process of attempting such entry.
Reading “arrives” as if it said “arrives or has previously arrived”10 would also produce at least two anomalies. First, as noted, it would render the first prong of section 212(a)(6)(A)(i) practically superfluous. Second, in combination with another inadmissibility ground, section 212(a)(9)(B)(i), reading “arrives” as “arrives or has previously arrived” would lead to results that Congress could not possibly have intended. The latter ground renders inadmissible any alien who has ever been unlawfully present in the United States for more than 180 days and then departs, but it limits the inadmissibility to either 3 years or 10 years, depending on the duration of the unlawful presence. If the second inadmissibility ground in section 212(a)(6)(A)(i) were interpreted to mean that any prior entry without inspection renders the alien inadmissible, then both the 180-day threshold and the 3-year and 10-year limitations on inadmissibility under section 212(a)(9)(B)(i) would be meaningless. One who enters without inspection and remains for less than 180 days – even one day, for that matter – and then leaves, is not inadmissible at all under section 212(a)(9)(B)(i), but it would not matter, because that person would be inadmissible for life under the more expansive reading of section 212(a)(6)(A)(i). Further, the alien who enters without inspection, remains for 8 months, and then leaves, is inadmissible under section 212(a)(9)(B)(i), but only for 3 years. That 3-year limitation would be meaningless, however, if section 212(a)(6)(A)(i) were interpreted to bar the person for life for the very same prior entry.11
The above considerations all come into play when an alien who entered without inspection subsequently receives parole. Such an alien will no longer be inadmissible under the first ground in section 212(a)(6)(A)(i) (present without having been admitted or paroled), because the alien has been paroled. And since that alien arrived in the United States only in the past, the second inadmissibility ground in section 212(a)(6)(A)(i) is already inapplicable (even without the parole), because the alien is not one who “arrives” (present tense) at an undesignated time or place. It is not a question of parole curing or erasing the second inadmissibility ground. Rather, the alien who arrived in the past is already outside the ambit of that second ground; past arrivals are the subject of the first ground.
Interpreting the explicit statutory language exactly as it is written therefore avoids all these anomalies. An alien who entered the United States without inspection, but subsequently receives parole, is not inadmissible under either of the two inadmissibility grounds contained in section 212(a)(6)(A)(i).12
For an alien who entered without inspection, a grant of parole under INA § 212(d)(5)(A) affects at least two of the eligibility requirements for adjustment of status. First, adjustment of status requires that the person be “admissible.” INA § 245(a)(2). As discussed above, parole eliminates one ground of inadmissibility, section 212(a)(6)(A)(i). Second, adjustment of status requires that the alien have been “inspected and admitted or paroled.” INA § 245(a). The grant of parole under INA §212(d)(5)(A) overcomes that obstacle as well. The alien must still, however, satisfy all the other requirements for adjustment of status. One of those requirements is that, except for immediate atives of United States citizens and certain other individuals,13 the person has to have “maintain[ed] continuously a lawful status since entry into the United States.” INA § 245(c)(2). Parole does not erase any periods of prior unlawful status. Thus, an alien who entered without inspection will remain ineligible for adjustment, even after a grant of parole, unless he or she is an immediate relative or falls within one of the other designated exemptions. Moreover, even an alien who satisfies all the statutory prerequisites for adjustment of status additionally requires the favorable exercise of discretion.
This PM supersedes any previous USCIS guidance on these issues, including the Memorandum to Field Leadership (AD07-18) at 5-6 (March 3, 2009).
AFM Chapters 21.1 and 40.6 (AFM Update AD 12-30) are updated as follows.
1. A new section 21.1(c) is added to read:
21.1 General Information About Relative Petitions
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(c) Special Parole Consideration for Spouses, Children and Parents of Active Duty Membersof the U.S. Armed Forces, individuals in the Selected Reserve of the Ready Reserve orIndividuals Who Previously Served in the U.S. Armed Forces or the Selected Reserve of theReady Reserve. The decision whether to grant parole under INA § 212(d)(5)(A) is discretionary. Generally, USCIS grants parole in place only sparingly. The fact that the individual is a spouse, child or parent of an Active Duty member of the U.S. Armed Forces, an individual in the Selected Reserve of the Ready Reserve or an individual who previously served in the U.S. Armed Forces or the Selected Reserve of the Ready Reserve, however, ordinarily weighs heavily in favor of parole in place. Absent a criminal conviction or other serious adverse factors, parole in place would generally be an appropriate exercise of discretion for such an individual. If USCIS decides to grant parole in that situation, the parole should be authorized in one-year increments, with extensions of parole as appropriate.
To request parole, the alien must submit to the director of the USCIS office with jurisdiction over the alien’s place of residence:
Completed Form I-131, Application for Travel Document (The USCIS Director has determined that in this situation the Form I-131 may be filed without fee, per 8 CFR 103.7(d));
Evidence of the family relationship;
Evidence that the alien’s family member is an Active Duty member of the U.S. Armed Forces, individual in the Selected Reserve of the Ready Reserve or an individual who previously served in the U.S. Armed Forces or the Selected Reserve or the Ready Reserve such as a photocopy of both the front and back of the service member’s military identification card (DD Form 1173);
Two identical, color, passport style photographs; and
Evidence of any additional favorable discretionary factors that the requestor wishes considered.
2. Chapter 40.6.2(a) of the AFM is revised:
a. By amending Chapter 40.6.2(a)(1);
b. By deleting Chapter 40.6.2(a)(3)(ii);
c. By deleting Chapter 40.6.2(a)(4)(ii) and redesignating Chapter 40.6.2(a)(4)(iii) as Chapter 40.6.2(a)(4)(ii); and
d. By amending the redesignated Chapter 40.6.2(a)(4)(ii). The revisions read as follows:
40.6.2 Individual Grounds of Inadmissibility Under INA Section 212(a)(6)
(a) INA Section 212(a)(6)(A): Alien Present Without Admission or Parole or Who Arrives at Undesignated Time or Place
(1) General. INA section 212(a)(6)(A)(i) contains two closely related inadmissibility grounds. The first ground relates to the alien who is “present in the United States without being admitted or paroled.” This inadmissibility ground generally covers those who entered the United States without inspection (and are still in the United States).
The second inadmissibility ground in section 212(a)(6)(A)(i) relates to the alien “who arrives in the United States at any time or place other than as designated by the [Secretary of Homeland Security].” Where the first inadmissibility ground leaves off, this one picks up. Using the present tense (“arrives”), it covers the alien who is in the process of entering U.S. territory without inspection.
The two inadmissibility grounds contained within section 212(a)(6)(A)(i) are thus complementary. Together, they capture aliens who have already achieved entry without inspection and those who are in the process of attempting such entry.
Parole. An alien who is paroled under INA section 212(d)(5)(A) will no longer be inadmissible under the first ground in section 212(a)(6)(A)(i) (present without being admitted or paroled), because the person has been paroled. And since that alien arrived in the United States only in the past, the second inadmissibility ground in section 212(a)(6)(A)(i) is already inapplicable (even without the parole), because the alien is not one who “arrives” (present tense) at an undesignated time or place. It is not a question of parole curing or erasing the second inadmissibility ground. Rather, the alien who arrived in the past is already outside the ambit of that second ground; past arrivals are the subject of the first ground. Thus, an alien who entered the United States without inspection, but subsequently receives parole, is not inadmissible under either of the two inadmissibility grounds contained in section 212(a)(6)(A)(i).
For an alien who entered without inspection, a grant of parole under INA § 212(d)(5)(A) affects at least two of the eligibility requirements for adjustment of status. First, adjustment of status requires that the person be “admissible.” INA § 245(a)(2). As discussed above, parole eliminates one ground of inadmissibility, section 212(a)(6)(A)(i). Second, adjustment of status requires that the alien have been “inspected and admitted or paroled.” INA § 245(a). The grant of parole overcomes that obstacle as well. The alien must still, however, satisfy all the other requirements for adjustment of status. One of those requirements is that, except for immediate relatives of United States citizens and certain other exempt categories listed in INA section 245(c)(2), the person has to have “maintain[ed] continuously a lawful status since entry into the United States.” Parole does not erase any periods of prior unlawful status or any other applicable grounds of inadmissibility. An alien who entered without inspection will therefore remain ineligible for adjustment, even after a grant of parole, unless he or she is an immediate relative or falls within one of the other designated exemptions. Moreover, even an alien who satisfies all the statutory prerequisites for adjustment of status additionally requires the favorable exercise of discretion.
* * * * *
(4) Exemptions and Waivers
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(ii) Waivers. There are no waivers available to applicants inadmissible under INA section 212(a)(6)(A)(i) other than the waivers (or inapplicabilities) described in AFM Chapter 40.6.1(b) or (c). As stated in AFM Chapter 40.6.2(a)(1), however, an alien paroled under INA section 212(d)(5)(A) is not inadmissible under INA section 212(a)(6)(A)(i).
3. The AFM Transmittal Memorandum button is revised by adding a new entry, in numerical order, to read:
This PM is intended solely for the guidance of USCIS personnel in the performance of their official duties. It is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law or by any individual or other party in removal proceedings, in litigation with the United States, or in any other form or manner.
Questions or suggestions regarding this PM should be addressed through appropriate channels to the Field Operations Directorate.
1 See Letter from Hon. Janet Napolitano, Sec. of Homeland Security, to Hon. Zoe Lofgren, U.S. House of Representatives (Aug. 30, 2010).
2 Memorandum from Paul W. Virtue, INS General Counsel, to INS officials, “Authority to Parole Applicants for Admission Who Are Not Also Arriving Aliens,” Legal Op. 98-10 (Aug. 21, 1998), 1998 WL 1806685.
3 Memorandum from Doris Meissner, INS Commissioner, to INS officials, “Eligibility for Permanent Residence Under the Cuban Adjustment Act Despite Having Arrived at a Place Other than a designated Port-of-Entry” (Apr. 19, 1999), reprinted in 76 Interpreter Releases 676, 684, App. 1 (May 3, 1999).
4 Memorandum from Gus P. Coldebella, DHS General Counsel, to DHS officials, “Clarification of the Relation Between Release under Section 236 and Parole under Section 212(d)(5) of the Immigration and Nationality Act” (Sept. 28, 2007). The same DHS General Counsel’s opinion rejected a conclusion that Mr. Virtue had reached on a separate issue related to release from detention under INA § 236(a)(2)(B) (so-called “conditional parole”), see Matter of Castillo-Padilla, 25 I&N Dec. 257 (BIA 2010) (agreeing with DHS that “conditional parole” under INA § 236(a)(2)(B) does not constitute parole under INA § 212(d)(5)(A)).
5 ICE and CBP also have parole authority. “Memorandum of Agreement between USCIS, ICE, and CBP for the purpose of coordinating the concurrent exercise by USCIS, ICE, and CBP of the Secretary’s Parole Authority Under INA § 212(d)(5)(A) with respect to certain aliens located outside of the United States,” Addendum I (September 2008). Their decisions whether to grant parole are outside the scope of the present PM.
6 INA § 235(a)(1).
7 Some inadmissibility grounds, like the second prong of 212(a)(6)(A)(i), cover only present conduct. See, e.g., sections212(a)(1)(A)(i) (determined “to have a communicable disease of public health significance”)(emphasis added); 212(a)(1)(A)(iv) (“determined … to be a drug addict”) (emphasis added); 212(a)(6)(D) (“is a stowaway”) (emphasis added). Other grounds cover only events that have occurred in the past (up to and including the present time). See, e.g., sections 212(a)(3)(B)(i) (“has engaged in a terrorist activity) (emphasis added); 212(a)(3)(E)(ii) (“ordered, incited, assisted, or otherwise participated in genocide”); 212(a)(6)(E) (“knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law”) (emphasis added). Still others cover only predictions of future activity. See, e.g., sections 212(a)(4)(A) (“is likely at any time to become a public charge”); 212(a)(10)(A) (“coming to the United States to practice polygamy”).
8 See, e.g., sections 212(a)(2)(D)(ii) (“procures or attempts to procure, or [less than ten years earlier] procured or attempted to procure … prostitutes”); 212(a)(3)(D)(i) (“is or has been a member of or affiliated with the Communist … party”); 212(a)(6)(C)(i) (fraudulently “seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit …”); 212(a)(6)(C)(ii) (“falsely represents, or has falsely represented, himself or herself” to be a U.S. citizen).
9 There is one scenario in which the first prong of section 212(a)(6)(A)(i) would capture an alien who does not fall within even the more expansive interpretation of the second prong. If the alien seeks admission at a designated port of entry, is denied admission, is detained, escapes from detention, and then makes his or her way into the interior, he or she would be inadmissible under the first ground but not the second one. It would be far-fetched, however, to assume that this was the only intended use of the first ground in 212(a)(6)(A)(i) (present without admission or parole).
10 Former AFM section 40.6.2(a)(3)(ii) had stated that “[i]nadmissibility does not continue after the alien has departed the United States.” But if this language were interpreted to imply the converse – i.e., that inadmissibility does continue even after the alien has long since arrived in the United States (and terminates only upon departure) – the assumption would have to be that “arrives” means “arrives or, if the person has not departed, has arrived.” There is no apparent legal basis or policy reason to interpret “arrives” in that way.
11 The only apparent counter-point is that, even if the language of the second prong (“arrives”) were read to mean “arrives or has ever arrived,” the limitations built into section 212(a)(9)(B)(i) would still be meaningful with respect to overstays (as opposed to those who entered without inspection). Nothing in the legislative history of section 212(a)(9)(B)(i), however, suggests a specific congressional focus on overstays, or a desire to distinguish between the two groups of undocumented aliens, or an intent to subject an alien to lifelong inadmissibility for having once before entered without inspection. Moreover, if a prior entry without inspection were enough to bar a person for life, then INA § 212(a)(9)(C), which prescribes that result only when the entry without inspection follows either one year of unlawful presence or a removal order, would be superfluous.
12 This analysis pertains exclusively to INA § 212(a)(6)(A)(i). It does not and is not intended to disturb the long-standing principles that an alien granted parole remains an applicant for admission who is considered to be constructively standing at the border, see INA § 101(a)(13)(B); Leng May Ma v. Barber, 357 U.S. 185, 189 (1958); Ibragimov v. Gonzales, 476 F.3d 125, 134 (2d Cir. 2008); and that “an application for admission [is] a continuing one,” Matter of Valenzuela-Felix, 26 I&N Dec. 53, 56 (BIA 2012) (parole for criminal prosecution).
13 INA § 245(c)(2) also exempts certain employment-based immigrants whose unlawful presence was for 180 days or less, in accordance with INA § 245(k)(2); aliens who were unlawfully present only in the past, without “fault” or for “technical reasons;” and certain subcategories of “special immigrant” described in INA § 101(a)(27)(H), (I), (J), or (K).
On November 20, 2014, the President announced a series of executive actions to crack down on illegal immigration at the border, prioritize deporting felons not families, and require certain undocumented immigrants to pass a criminal background check and pay taxes in order to temporarily stay in the U.S. without fear of deportation.
These initiatives include:
Expanding the population eligible for the Deferred Action for Childhood Arrivals (DACA) program to young people who came to this country before turning 16 years old and have been present since January 1, 2010, and extending the period of DACA and work authorization from two years to three years | Details
Allowing parents of U.S. citizens and lawful permanent residents who have been present in the country since January 1, 2010, to request deferred action and employment authorization for three years, in a new Deferred Action for Parental Accountability program, provided they pass required background checks | Details
Expanding the use of provisional waivers of unlawful presence to include the spouses and sons and daughters of lawful permanent residents and the sons and daughters of U.S. citizens | Details
Modernizing, improving and clarifying immigrant and nonimmigrant programs to grow our economy and create jobs | Details
Promoting citizenship education and public awareness for lawful permanent residents and providing an option for naturalization applicants to use credit cards to pay the application fee | Details
Important notice: These initiatives have not yet been implemented, and USCIS is not accepting any requests or applications at this time. Beware of anyone who offers to help you submit an application or a request for any of these actions before they are available. You could become a victim of an immigration scam. Subscribe to this page to get updates when new information is posted.
USCIS and other agencies and offices are responsible for implementing these initiatives as soon as possible. Some initiatives will be implemented over the next several months and some will take longer.
Over the coming months, USCIS will produce detailed explanations, instructions, regulations and forms as necessary. The brief summaries provided below offer basic information about each initiative.
While USCIS is not accepting requests or applications at this time, if you believe you may be eligible for one of the initiatives listed above, you can prepare by gathering documents that establish factors such as your:
Relationship to a U.S. citizen or lawful permanent resident; and
Continuous residence in the United States over the last five years or more.
We strongly encourage you to subscribe to receive an email whenever additional information on these initiatives is available on our website. We will also post updates on Facebook and Twitter.
Share this page with your friends and family members. Remind them that the only way to be sure to get the facts is to get them directly from USCIS. Unauthorized practitioners of immigration law may try to take advantage of you by charging a fee to submit forms to USCIS on your behalf or by claiming to provide other special access or expedited services which do not exist. To learn how to get the right immigration help, go to the Avoid Scams page.
Below are summaries of major planned initiatives by USCIS, including:
Notes: USCIS will consider each request for Deferred Action for Parental Accountability (DAPA) on a case-by-case basis. Enforcement priorities include (but are not limited to) national security and public safety threats.
Approximately 180 days following the President’s November 20, 2014, announcement.
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Undocumented individuals who have resided unlawfully in the United States for at least 180 days and who are:
The sons and daughters of U.S. citizens; and
The spouse and sons or daughters of lawful permanent residents.
Expands the provisional waiver program announced in 2013 by allowing the spouses, sons or daughters of lawful permanent residents and sons and daughters of U.S. citizens to get a waiver if a visa is available. There may be instances when the qualifying relative is not the petitioner.
Clarifies the meaning of the “extreme hardship” standard that must be met to obtain a waiver.
Notes: Currently, only spouses and minor children of U.S. citizens are allowed to apply to obtain a provisional waiver if a visa is available. For more information about the waivers program, go to the Provisional Unlawful Presence Waivers page which will be updated over the next several months.
Upon issuing of new guidelines and regulations.
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4. Modernize, improve and clarify immigrant and nonimmigrant programs to grow our economy and create jobs
U.S. businesses, foreign investors, researchers, inventors and skilled foreign workers.
Work with the Department of State to develop a method to allocate immigrant visas to ensure that all immigrant visas authorized by Congress are issued to eligible individuals when there is sufficient demand for such visas.
Work with the Department of State to modify the Visa Bulletin system to more simply and reliably make determinations of visa availability.
Provide clarity on adjustment portability to remove unnecessary restrictions on natural career progression and general job mobility to provide relief to workers facing lengthy adjustment delays.
Clarify the standard by which a national interest waiver may be granted to foreign inventors, researchers and founders of start-up enterprises to benefit the U.S economy.
Authorize parole, on a case-by-case basis, to eligible inventors, researchers and founders of start-up enterprises who may not yet qualify for a national interest waiver, but who:
Have been awarded substantial U.S. investor financing; or
Otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting-edge research.
Finalize a rule to provide work authorization to the spouses of certain H-1B visa holders who are on the path to lawful permanent resident status.
Work with Immigration and Customs Enforcement (ICE) to develop regulations for notice and comment to expand and extend the use of optional practical training (OPT) for foreign students, consistent with existing law.
Provide clear, consolidated guidance on the meaning of “specialized knowledge” to bring greater clarity and integrity to the L-1B program, improve consistency in adjudications, and enhance companies’ confidence in the program.
Upon issuing necessary guidance and regulations.
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Q1: When will USCIS begin accepting applications related to these executive initiatives?
A1: While USCIS is not accepting applications at this time, individuals who think they may be eligible for one or more of the new initiatives may prepare now by gathering documentation that establishes factors such as their:
Relationship to a U.S. citizen or lawful permanent resident; and
Continuous residence in the United States over the last five years or more.
USCIS expects to begin accepting applications for the:
Expanded DACA program approximately 90 days after the President’s November 20, 2014, announcement; and
Deferred action for parents of U.S. citizens and lawful permanent residents (Deferred Action for Parental Accountability) approximately 180 days after the President’s November 20, 2014, announcement.
Others programs will be implemented after new guidance and regulations are issued.
We strongly encourage you to subscribe to receive an email whenever additional information is available on the USCIS website. Remember that the only way to get official information is directly from USCIS. Unauthorized practitioners of immigration law may try to take advantage of you by charging a fee to submit forms to USCIS on your behalf or by claiming to provide other special access or expedited services which do not exist. To learn how to get the right immigration help, visit www.uscis.gov/avoidscams for tips on filing forms, reporting scams and finding accredited legal services.
Q2: How many individuals does USCIS expect will apply?
A2: Preliminary estimates show that roughly 4.9 million individuals may be eligible for the initiatives announced by the President. However, there is no way to predict with certainty how many individuals will apply. USCIS will decide applications on a case-by-case basis and encourages as many people as possible to consider these new initiatives. During the first two years of DACA, approximately 60 percent of potentially eligible individuals came forward. However, given differences among the population eligible for these initiatives and DACA, actual participation rates may vary.
Q3: Will there be a cutoff date for individuals to apply?
A3: The initiatives do not include deadlines. Nevertheless, USCIS encourages all eligible individuals to carefully review each initiative and, once the initiative becomes available, make a decision as soon as possible about whether to apply.
Q4: How long will applicants have to wait for a decision on their application?
A4: The timeframe for completing this new pending workload depends on a variety of factors. USCIS will be working to process applications as expeditiously as possible while maintaining program integrity and customer service. Our aim is to complete all applications received by the end of next year before the end of 2016, consistent with our target processing time of completing review of applications within approximately one year of receipt. In addition, USCIS will provide each applicant with notification of receipt of their application within 60 days of receiving it.
Q5: Will USCIS need to expand its workforce and/or seek appropriated funds to implement these new initiatives?
A5: USCIS will need to adjust its staffing to sufficiently address this new workload. Any hiring will be funded through application fees rather than appropriated funds.
Q6: Will the processing of other applications and petitions (such as family-based petitions and green card applications) be delayed?
A6: USCIS is working hard to build capacity and increase staffing to begin accepting requests and applications for the initiatives. We will monitor resources and capacity very closely, and we will keep the public and all of our stakeholders informed as this process develops over the course of the coming months.
Q7: What security checks and anti-fraud efforts will USCIS conduct to identify individuals requesting deferred action who have criminal backgrounds or who otherwise pose a public safety threat or national security risk?
A7: USCIS is committed to maintaining the security and integrity of the immigration system. Individuals seeking deferred action relief under these new initiatives will undergo thorough background checks, including but not limited to 10-print fingerprint, primary name and alias name checks against databases maintained by DHS and other federal government agencies. These checks are designed to identify individuals who may pose a national security or public safety threat, have a criminal background, have perpetrated fraud, or who may be otherwise ineligible to request deferred action. No individual will be granted relief without passing these background checks.
In addition, USCIS will conduct an individual review of each case. USCIS officers are trained to identify indicators of fraud, including fraudulent documents. As with other immigration requests, all applicants will be warned that knowingly misrepresenting or failing to disclose facts will subject them to criminal prosecution and possible removal from the United States.
Q8: What if someone’s case is denied or they fail to pass a background check?
A8: Individuals who knowingly make a misrepresentation, or knowingly fail to disclose facts, in an effort to obtain deferred action or work authorization through this process will not receive favorable consideration for deferred action. In addition, USCIS will apply its current policy governing the referral of individual cases to Immigration and Customs Enforcement (ICE) and the issuance of Notices to Appear before an immigration judge. If the background check or other information uncovered during the review of a request for deferred action indicates that an individual’s presence in the United States threatens public safety or national security, USCIS will deny the request and refer the matter for criminal investigation and possible removal by ICE, consistent with existing processes.
Q9: If I currently have DACA, will I need to do anything to receive the third year of deferred action and work authorization provided by the executive initiatives?
A9: The new three-year work authorization timeframe will be applied for applications currently pending and those received after the President’s announcement. Work authorizations already issued for a two-year period under the current guidelines will continue to be valid through the validity period indicated on the card. USCIS is exploring means to extend previously issued two-year work authorization renewals to the new three-year period.
Q10: Will the information I share in my request for consideration of deferred action be used for immigration enforcement purposes?
A10: Information provided in your request is protected from disclosure to Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) for the purpose of immigration enforcement proceedings unless you meet the criteria for the issuance of a Notice to Appear or a referral to ICE under the criteria set forth in USCIS’ Notice to Appear guidance. Individuals who are granted deferred action will not be referred to ICE. The information may be shared, however, with national security and law enforcement agencies, including ICE and CBP, for purposes other than removal, including:
Assisting in the consideration of the deferred action request;
To identify or prevent fraudulent claims;
For national security purposes; or
For the investigation or prosecution of a criminal offense.
This policy covers family members and guardians, in addition to you.
Q11: What is USCIS doing to assist dependents of U.S. armed services personnel?
A11: USCIS is working with the Department of Defense to determine how to expand parole authorization to dependents of certain individuals enlisting or enlisted in the U.S. armed services. For information on the existing parole-in-place policy for military personnel, please read this policy memorandum.
Deferred action: A use of prosecutorial discretion to not remove an individual from the country for a set period of time, unless the deferred action is terminated for some reason. Deferred action is determined on a case-by-case basis and only establishes lawful presence but does not provide immigration status or benefits of any kind. DACA is one type of deferred action.
Parole in place: Immigration and Nationality Act section 212(d)(5)(A) gives the Secretary the discretion, on a case-by-case basis, to “parole” for “urgent humanitarian reasons or significant public benefit” an alien applying for admission to the United States. Although it is most frequently used to permit an alien who is outside the United States to come into U.S. territory, parole may also be granted to aliens who are already physically present in the U.S. without inspection or admission. This latter use of parole is sometimes called “parole in place.”
Prosecutorial discretion: The legal authority to choose whether or not to take action against an individual for committing an offense.
Provisional waiver: Waiver for individuals who are otherwise inadmissible due to more than 180 days of unlawful presence in the United States, based on a showing of extreme hardship to certain U.S. citizen or lawful permanent resident family members, which allows the individual to return after departure for an immigrant visa interview at a U.S. embassy or consulate. For more information, go to the Provisional Unlawful Presence Waivers page.
DHS Announces Temporary Protected Status Designations for Liberia, Guinea, and Sierra Leone
WASHINGTON— Due to the outbreak of Ebola virus disease in West Africa, Secretary of Homeland Security Jeh Johnson has announced his decision to designate Liberia, Guinea, and Sierra Leone for Temporary Protected Status (TPS) for 18 months. As a result, eligible nationals of Liberia, Guinea, and Sierra Leone who are currently residing in the United States may apply for TPS with U.S. Citizenship and Immigration Services (USCIS). The Federal Register notices provide details and procedures for applying for TPS and are available at www.uscis.gov/tps.
The TPS designations for the three countries are effective Nov. 21, 2014 and will be in effect for 18 months. The designations mean that eligible nationals of Liberia, Guinea, and Sierra Leone (and people without nationality who last habitually resided in one of those three countries) will not be removed from the United States and are authorized to work and obtain an Employment Authorization Document (EAD). The 180-day TPS registration period begins Nov. 21, 2014 and runs through May 20, 2015.
To be eligible for TPS, applicants must demonstrate that they satisfy all eligibility criteria, including that they have been “continuously residing” in the United States since Nov. 20, 2014 and “continuously physically present in” the United States since Nov. 21, 2014. Applicants also undergo thorough security checks. Individuals with certain criminal records or who pose a threat to national security are not eligible for TPS. The eligibility requirements are fully described in the Federal Register notices and on the TPS Web page at www.uscis.gov/tps
Liberians currently covered under the two-year extension of Deferred Enforced Departure (DED) based on President Obama’s Sept. 26, 2014 memorandum may apply for TPS. If they do not apply for TPS within the initial 180-day registration period, they risk being ineligible for TPS because they will have missed the initial registration period. Liberians covered by DED who already possess or have applied for an EAD do not need to also apply for one related to this TPS designation. However, such individuals who are granted TPS may request a TPS-related EAD at a later date as long as the TPS designation for Liberia remains in effect.
Applicants may request that USCIS waive any or all fees based on demonstrated inability to pay by filing Form I-912, Request for Fee Waiver, or by submitting a written request. Fee-waiver requests must be accompanied by supporting documentation. USCIS will reject any TPS application that does not include the required filing fee or a properly documented fee-waiver request.
All USCIS forms are free. Applicants can download these forms from the USCIS website at www.uscis.gov/forms or request them by calling USCIS toll-free at 1-800-870-3676.
Applicants seeking information about the status of their individual cases can check My Case Status Online or call the USCIS National Customer Service Center at 1-800-375-5283 (TTY 1-800-767-1833).
U.S. Citizenship and Immigration Services (USCIS) invites you to participate in a stakeholder engagement session on Friday, Dec. 5, from 1 to 3:00 p.m. Eastern to discuss the Immigrant Investor Program. This engagement is part of our efforts to enhance dialogue with external stakeholders regarding the program, also known as EB-5.
During the first part of this engagement, we will provide EB-5 program updates from fiscal year 2014 and discuss initiatives for fiscal year 2015. The second part of the engagement will be a question-and-answer session. You may ask non-case specific questions or provide feedback on the EB-5 program.
You can attend this engagement either in-person or by teleconference. Please note that in-person attendance is limited to the first 80 people who register.
To register for this session, please follow the steps below:
If you have any questions regarding the registration process, or if you have not received a confirmation email within two business days after you register, please email us at Public.Engagement@uscis.dhs.gov.
USCIS Policy Update on Assisted Reproductive Technology
U.S. Citizenship and Immigration Services (USCIS) invited you to participate in a stakeholder listening session on Tuesday, Nov. 18, from 1–2:30 p.m. (Eastern) about a policy update on assisted reproductive technology (ART).
This policy update (PA-2014-009) clarifies the definition of “mother” and “parent” under the Immigration and Nationality Act to include gestational legal mothers using ART regardless of whether they are the genetic mother. Previously, U.S. citizen mothers were generally required to have a genetic relationship with their child in order to transmit citizenship at birth.
During this teleconference, USCIS representatives discussed this policy update and answered stakeholder questions.
U.S. Citizenship and Immigration Services (USCIS) invited you to participate in a webinar for the Department of Education on Deferred Action for Childhood Arrivals (DACA) on Thursday, November 13 at 7:30 p.m. (EST)
From Nov. 12-15, Form I-90, Application to Replace Permanent Resident Card, Available for Filing in USCIS ELIS
On Nov.12, USCIS will make Form I-90, Application to Replace Permanent Resident Card, temporarily available in the USCIS Electronic Immigration System (USCIS ELIS). We will use a two-stage approach in launching the I-90 capability. The first stage will be a 72-hour limited introduction from 10 a.m. Eastern on Nov. 12 until 10 a.m. Eastern on Nov. 15. As part of this effort, USCIS will process and formally adjudicate any Forms I-90 submitted through USCIS ELIS during the limited introduction. The second stage will occur early in 2015 when the Form I-90 is fully implemented in USCIS ELIS.
Why should I participate?
Be one of the first to experience our redesigned electronic application process;
Submit a Form I-90 application electronically, upload required evidence, and pay your fee all in one transaction;
Receive access to specific and timely case status information; and
Provide valuable feedback to help us improve your overall experience with USCIS ELIS.
How do I participate?
Please visit our website during the limited introduction outlined above. Please note you must create a new USCIS ELIS account to participate. Once you create your account, you can begin your I-90 application.
Those who choose to participate must start a Form I-90 application in USCIS ELIS before the limited introduction ends and will have 30 days to complete and submit your Form I-90 application within USCIS ELIS. If you fail to complete your Form I-90 within 30 days, USCIS will delete your online application and you will need to file a paper Form I-90.
Who may participate?
Permanent residents needing to replace or renew their permanent resident card may participate. Those who participate may be asked to complete an anonymous USCIS survey about your experience or participate in a feedback session. Participation in the survey or feedback session is completely voluntary and will not impact the adjudication of your application.
Attorneys and accredited representatives may not file a Form I-90 within USCIS ELIS during the limited introduction. Attorneys, accredited representatives and customers who do not want to file electronically through USCIS ELIS will still be able to file paper Form I-90s.
Thank you for your interest in USCIS ELIS. Your participation will help us continue to improve and modernize the process for filing and adjudicating immigration benefits. In 2015, USCIS plans to fully implement Form I-90 within USCIS ELIS based on feedback from this effort.
Special provisions of the Immigration and Nationality Act (INA) authorize U.S. Citizenship and Immigration Services (USCIS) to expedite the application and naturalization process for current members of the U.S. armed forces and recently discharged servicemembers. Generally, qualifying military service includes service with one of the following: Army, Navy, Air Force, Marine Corps, Coast Guard and National Guard. In addition, spouses of members of the U.S. armed forces who are or will be deployed may be eligible for expedited naturalization. Other provisions of the law also allow certain spouses to complete the naturalization process abroad.
A member of the U.S. armed forces must meet the requirements and qualifications to become a citizen of the United States. He or she must demonstrate:
Good moral character,
Knowledge of the English language,
Knowledge of U.S. government and history (civics), and
Attachment to the United States by taking an Oath of Allegiance to the U.S. Constitution.
Qualified members of the U.S. armed forces are exempt from other naturalization requirements, including residence and physical presence in the United States. These exceptions are listed in Sections 328 and 329 of the INA.
All aspects of the naturalization process, including applications, interviews and ceremonies are available overseas to members of the U.S. armed forces and certain “command-sponsored” spouses.
A person who obtains U.S. citizenship through his or her military service and separates from the military under “other than honorable conditions” before completing five years of honorable service may have his or her citizenship revoked.
Service in Peacetime
Section 328 of the INA applies to all members of the U.S. armed forces and those already discharged from service. An individual may qualify for naturalization if he or she has:
Served honorably in the U.S. armed forces for at least one year,
Obtained lawful permanent resident status, and
Filed an application while still in the service or within six months of separation.
Service during Periods of Hostilities
Under special provisions in Section 329 of the INA, the President signed an executive order on July 3, 2002, authorizing all noncitizens who have served honorably in the U.S. armed forces on or after Sept. 11, 2001, to immediately file for citizenship. This order also covers veterans of certain designated past wars and conflicts. The authorization will remain in effect until a date designated by a future presidential executive order.
Naturalization at Basic Training
USCIS established the Naturalization at Basic Training Initiative in August 2009 with the Army to give noncitizen enlistees the opportunity to naturalize when they graduate from basic training. Under this initiative, USCIS conducts all naturalization processing including the capture of biometrics, the naturalization interview and administration of the Oath of Allegiance on the military installation. Since 2009 USCIS has expanded the initiative to the Navy, Air Force, and finally to the Marine Corps in 2013, giving enlistees of these branches equal opportunity to (in most cases) leave basic training as U.S. citizens.
How to Apply
Every military installation has a designated point-of-contact, generally in the personnel division or the Judge Advocate General’s Office, to assist members of the military prepare and file their naturalization application packet. That packet includes:
Application for Naturalization, USCIS Form N-400 (Members of the military are not charged a fee to file the Form N-400.)
Request for Certification of Military or Naval Service, USCIS Form N-426 (The military must certify this form before sending it to USCIS. Individuals separated from the military may submit an uncertified Form N-426 with their DD Form 214.)
Once the packet is complete, send it to the specialized military naturalization unit at the USCIS Nebraska Service Center for expedited processing.
Customer Service to Assist the Military
USCIS customer service specialists are available to respond to inquiries from military members and their families Monday through Friday from 8 a.m. until 4:30 p.m., Central Time, except federal holidays. Military families may contact USCIS by:
Calling the military toll-free telephone help line -- 1-877-CIS-4MIL (1-877-247-4645), or
Section 329A of the INA provides for grants of posthumous citizenship to certain members of the U.S. armed forces. A member of the U.S. armed forces who served honorably during a designated period of hostility and died as a result of injury or disease incurred in or aggravated by that service (including death in combat) may be eligible to receive posthumous citizenship, as long as the next-of-kin applies for posthumous citizenship within two years of the service member’s death. Other provisions of the law extend immigration benefits to the service member’s surviving spouse, children and parents.
Statistics (through Fiscal Year 2014)
Since Oct. 1, 2002, USCIS has naturalized 102,266 members of the military, with 11,548 of those service members becoming citizens during USCIS naturalization ceremonies in 34 foreign countries: Afghanistan, Albania, Australia, Bahrain, China (Hong Kong), Cuba (Guantanamo), Djibouti, El Salvador, Georgia, Germany, Greece, Haiti, Honduras, Iceland, Iraq, Italy, Jamaica, Japan, Jordan, Kenya, Korea, Kosovo, Kuwait, Kyrgyzstan, Libya, Mexico, the Philippines, Qatar, South Korea, Spain, Thailand, Turkey, United Arab Emirates and the United Kingdom.
Since the beginning of fiscal year 2008, USCIS has naturalized 2,318 military spouses during ceremonies in the following 30 countries: Afghanistan, Australia, Bahrain, Bulgaria, Chile, Cuba, China (Hong Kong), El Salvador, Georgia, Germany, Greece, India, Italy, Jamaica, Japan, Kuwait, Mexico, Norway, Oman, Panama, the Philippines, Poland, Portugal, South Korea, Spain, Tanzania, Thailand, Turkey, United Kingdom and the United Arab Emirates.
Since the beginning of fiscal year 2009, USCIS has presented 90 children of members of the military with citizenship certificates during ceremonies in Italy, Germany, Japan, South Korea and the United Kingdom.
MILITARY STATISTICS BY YEAR AND LOCATION (through Fiscal Year 2014)