Biden Administration Opens Parole in Place Program for Undocumented Spouses and Stepchildren of U.S. Citizens

At a glance

• The Department of Homeland Security is now applications for a new parole in place (PIP) program for certain undocumented spouses and stepchildren of U.S. citizens.
• Applicants must submit USCIS Form I-131F and supporting documentation online. Paper applications are not accepted.

The issue

Beginning today, undocumented spouses  and stepchildren of U.S. citizens who qualify for the Biden Administration’s new parole in place (PIP) program may begin submitting applications, according to a Federal Register notice that was made public. If approved for parole in place, a non-citizen spouse or stepchild will be permitted 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, thereby avoiding the delays and uncertainties of consular processing and the potential of triggering a three- or ten-year bar to return, absent a discretionary waiver.

Who is eligible for PIP?

Undocumented spouses (or widows/widowers) 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;
• Have a legally valid marriage to a U.S. citizen on or before June 17, 2024;
• Have been continuously present in the United States since at least June 17, 2014 through the date of filing the parole in place request;
• Have no disqualifying criminal history or national security/public safety concerns; and
• Otherwise merit favorable discretion by DHS.

In accompanying FAQs, 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 since June 17, 2014. However, depending on the facts of the particular case, return from such an absence may trigger a three- or ten-year or permanent bar, which may render the individual ineligible to adjust status, though a waiver may be available in some cases.

Undocumented stepchildren of U.S. citizens may also be eligible for parole in place under the new pathway, and they may apply independent of their undocumented foreign national natural parent. To qualify, the children must have been physically present in the United States without admission or parole and have had a qualifying stepchild relationship with the U.S. citizen, both as of June 17, 2024. To qualify as a stepchild under U.S. immigration law, the child must be unmarried and under 21 and must have been under the age of 18 at the time of the marriage that created the stepchild relationship.

Individuals who qualify for PIP will be provided up to a three-year period within which they may apply for adjustment of status. During that time, they will be eligible for work authorization and protected from removal.

Disqualifying criminal grounds

Individuals with felony convictions, including felony DUI offenses, will be ineligible for the PIP program. In addition, certain specifically enumerated 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 mitigating and countervailing positive factors. Individuals with pending criminal charges will be ineligible to apply for parole in place, regardless of the nature of the charges.

The application process

Applicants for PIP must submit their applications through the myUSCIS online filing system.  The filing fee is $580; no fee waivers are available. Paper applications are not accepted.

Evidence to support the application must be submitted online with Form I-131F, and should include the following for undocumented spouses of U.S. citizens:

• Evidence of a legally valid marriage to a U.S. citizen on or before June 17, 2024, such as a marriage certificate.  Common-law marriages may qualify if they are legally valid under the law of the location of the relationship.
  • States that fully recognize common law marriage
    • Colorado, District of Columbia, Iowa, Kansas, Montana, Oklahoma, Rhode Island, and Texas. These states don’t require a marriage certificate to prove a marriage exists. For example, Colorado has broad guidelines that include living together at the same address and presenting themselves as spouses. This allows unwed Coloradans to file joint taxes and have other benefits that married couples typically have.
  • States that have limited recognition
    • New Hampshire and Utah. New Hampshire recognizes common law marriage for inheritance purposes only. In New Hampshire, two people are considered legally married if they cohabitate for three years, acknowledge each other as husband and wife, and are generally considered to be such until one of them dies.
  • Some states that only recognize common law marriages that began before a certain date. For example, Alabama recognizes common law marriages that began before January 1, 2017, and South Carolina recognizes common law marriages that began before July 24, 2019.
• Documentation of proof of identity (including expired documents), such as:
  • • Valid state or country driver’s license or identification;
    • Birth certificate with photo identification;
    • Valid passport; or
    • Any government issued document bearing the applicant’s name, date of birth, and photo.
• Evidence of spouse’s U.S. citizenship, such as a passport, birth certificate, or Certificate of Naturalization; and
• Documentation to establish continuous physical presence in the United States since at least June 17, 2014, including documents such as rent receipts, residential records, school records, medical records, financial records, and tax receipts and returns, among others.

Required supporting documentation for applications by undocumented stepchildren of U.S. citizens will include the following:

• Proof of identity (as above);
• The birth certificate of the stepchild listing the name of the noncitizen parent as a natural parent;
• Documentation of the noncitizen parent’s legally valid marriage to the U.S. citizen on or before June 17, 2024 (as above);
• Proof of the U.S. citizenship of the stepparent (as above); and
• Evidence establishing the stepchild’s continuous physical presence in the United States since June 17, 2024.

Applicants may be required to appear at a USCIS Application Support Center to provide their biometrics.

Once a PIP application is submitted, the applicant will be subject to criminal and background checks.

What this means for employers and foreign nationals

The highly anticipated 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, individuals who are interested in applying for PIP should discuss the risks and benefits of the program with qualified immigration counsel before moving ahead. If you or your organization has questions about the new program, please contact our offices.