On November 15, 2013, the Department of Homeland Security (DHS) published a Policy Memorandum (PM) that provides relief to many undocumented spouses of military personnel. This policy memorandum aims at directly assisting spouses of U.S. Military personnel, active or veteran who is a U.S. Citizen.
To demonstrate how this PM works, let’s use the example John and Jane Doe. Let’s say Jane entered the U.S. without a visa and since her entry never left the U.S. She is now married to John Doe a U.S. citizen who is a veteran of the army and served in Iraq. John wants to help his wife, so he petitions for her. However, because of the manner of her entry into the U.S. she cannot change status to legal permanent resident here in the United States. She is not eligible for 245 (i) and no other exceptions apply in her case. Therefore Jane needs to pursue consular processing and must return to her country before she can be admitted as a lawful permanent resident. She would also require a waiver to forgive any penalties she will receive for the manner of initial her entry into the U.S. This is where this PM becomes useful.
Essentially, Jane can now apply for “Parole in Place”, which if approved, will allow her to apply to become a lawful permanent resident here in the U.S., without returning to her country. There will be no family separation and no need for a waiver. This type of parole is authorized under §212(d)(5)(A), and it should not be confused with conditional parole or advance parole.
Now, we have already received many questions from people who are married to U.S. citizens and want to pursue parole as outlined in this PM. Many want to apply for the parole even though they do not have military spouses. Clearly, if you can qualify for parole under INA §212(d)(5)(A) independent of having a military spouse, then you may be able to avoid consular processing and a waiver. But the difficulty is qualifying for parole under 212(d)(5)(A), which authorizes the Secretary of DHS to parole into the U.S. on a case-by-case basis certain individuals, who have urgent humanitarian reasons or provided significant public benefit to the U.S. Examples of humanitarian reasons include urgent medical family and related needs, and examples of significant public benefits include testifying in a legal matter on behalf of the government.
Another feature of 212(d)(5)(A), is that it traditionally applied to individuals outside the U.S. or at a port of entry. The current PM, is extending 212(d)(5)(A) to spouses of military personnel already here in the U.S.
Last point, this PM provides a legal analysis and direction to USCIS. Therefore, any interested in this type of parole should consult with a lawyer.