Federal Court Invalidates Parole in Place for Undocumented Spouses and Stepchildren of U.S. Citizens

A federal judge for the Eastern District of Texas has held that the Biden Administration overstepped its authority with its "Keeping Families Together," or parole in place (PIP) program. The program was intended to open the way for eventual legalization for certain undocumented spouses and stepchildren of U.S. citizens.

Keeping Families Together went into effect on August 19, 2024. Texas and 15 other states immediately challenged its legality. A federal judge issued an injunction for the program on August 26. On November 7, it was declared unlawful.

Judge J. Campbell Barker ruled that Congress did not give the Department of Homeland Security (DHS) the authority to enact such a program under the Immigration and Nationality Act (INA). The states that challenged PIP argued it promoted illegal immigration and exceeded executive powers. The coalition of states also claimed it would cost them millions of dollars in resources.

The decision has generated uncertainty among affected families, especially in the Hispanic community.

What Is Parole in Place?

The Keeping Families Together program allowed undocumented spouses and stepchildren of U.S. citizens who met the requirements to legalize their immigration status without having to leave the country. The announcement was welcomed by those who would otherwise have to leave the country for up to ten years before returning to the U.S.

Since Aug. 26, the date the U.S. District Court for the Eastern District of Texas issued an administrative stay, the USCIS did not grant any pending parole petitions under Keeping Families Together, although it continued to accept Form I-131F and schedule biometrics appointments. As of the November 7 ruling, the program is permanently canceled.

What Will Happen to Those Who Have Already Applied for Parole in Place?

All applications that are still in processing are now null and void. As for people who had already received parole in place, the USCIS notes that "the order does not affect petitions approved before the district court issued the administrative stay at 6:46 p.m. ET on August 26, 2024."

Those who planned to apply will now have to consider other immigration alternatives.

The Illegal Immigration Reform and Immigration Responsibility Act

The Illegal Immigration Reform and Immigration Responsibility Act affects people who have accumulated unlawful presence in the United States and then try to legalize their status. Under this 1996 law, undocumented immigrants must leave the country prior to seeking an adjustment of status. The sanction under this law depends on the duration of the illegal stay:

• There is a 3-year ban on re-entry for those who have been in the U.S. unlawfully for more than 180 days, but less than one year.
• There is a 10-year ban on re-entry for those who have been in the U.S. unlawfully for more than a year.

However, there are certain waivers that allow some family members of citizens or residents to apply for a waiver before leaving for their interview at a consulate abroad.

Alternatives After Cancellation

For affected families, there are a few alternatives:

Waivers: There are certain waivers (Forms I-192, I-601, I-601A, I-212) that may allow for adjustment of status. This process, however, may require departure from the country and compliance with waiting periods.

Provisional Unlawful Presence Waiver: This waiver allows you to apply for a waiver of the period of punishment before leaving the U.S. for the consular interview, reducing the time you must spend outside the country. For the provisional unlawful presence waiver (Form I-601A), very strict requirements must be met, including showing that the denial of your admission to the United States will cause extreme hardship to your spouse.

Adjustment of status through an immediate relative petition: If you are undocumented and in the country illegally, this process could require you to leave the country to continue the consular process. It is important to note that this process can be long and carries the risk of not being able to return.

Spouses and stepchildren who have entered the country legally, even if their status has expired, may still qualify for adjustment of status without having to leave the country, as long as they meet the necessary requirements.

What's Next?

The annulment of "parole in place" highlights the tense and changing nature of immigration policy in the United States. Following the inauguration of President-elect Donald Trump on January 20, further changes are expected. As for the recent ruling, even if the federal government were to appeal, the incoming administration would almost certainly end the PIP program anyway.

This blog was originally published on abogado.com by Mairim Gomez. Read the Spanish version.

Related Resources

• Spouses, College Grads Among Those Who Benefit From Biden's New Immigration Measures (FindLaw's Law and Daily Life)
• Former President Donald Trump’s Alien Enemies Act Immigration Plan: Can He Do It? (FindLaw's Federal Courts)
• After Mistrial of Arizona Man Who Shot a Mexican Migrant, Judge Says No Retrial Will Be Allowed (FindLaw's Courtside)