There is a common misconception concerning the undocumented and their future prospects. Many believe marrying United States citizens can solve their immigration issues. This is not the case for the vast majority of undocumented currently living in the U.S. In order to adjust from no status to a type of lawful status, U.S. immigration law provides that an individual must first have been inspected and admitted or paroled. Most undocumented individuals entered the country without inspection and do not meet that requirement. Even if an undocumented individual has been married to a U.S. citizen for many years or has adult U.S. citizen children, he or she would still be unable to adjust without first being inspected and admitted or paroled.
This is the Catch-22. To become inspected and admitted or paroled, an undocumented individual must leave the country and enter through a designated port of entry. But, if an undocumented individual does leave the country, they will trigger either a three or ten year bar from entering the U.S. To summarize so far, undocumented individuals that entered without inspection who are eligible to become Permanent Residents cannot do so without facing the consequences of the three or ten year bar. Although there are waivers available to combat the three or ten year bar, the standard of extreme hardship to a U.S. Citizen is a hard one to meet.
But there is hope in a discretionary tool called “parole in place.” On November 15, 2013, the U.S. Citizenship and Immigration Service issued a policy memorandum outlining “parole in place” for spouses, children, and parents of military members. This allows an undocumented individual to be paroled into the U.S. without having to physically leave the U.S., avoiding the three or ten year bar. After being paroled, these individuals can now adjust to Permanent Residents. Also of note, a 2012 BIA case held that leaving the country with an advanced parole document will not count as a departure for the purposes of the three and ten year ban. This theoretically will clear the way for adjustment of status, but this document is only available for those with TPS or DACA. Although these are great opportunities for the undocumented family members of military members and those with TPS or DACA, it does not solve the issue of the countless more that are similarly situated.
With the lack of movement on immigration reform, there is growing speculation that the Obama Administration will take executive action in the coming months to address some immigration issues. The Administration acted similarly in 2012 when it announced DACA, giving those who were brought to this country illegally as children an opportunity to work and go to school. An option that the Administration has is to extend the reach of “parole in place” past just the immediate family of military members. Such action would cause great waves in the immigration system and would create an opportunity for those caught in this immigration Catch-22.