Potential Path to a Green Card in Executive Action

In a little-noticed memo on November 20th, Department of Homeland Security Secretary Jeh Johnson ordered Customs and Border Protection and Citizenship and Immigration Services to allow unlawful immigrants who are granted advance parole to depart the United States and reenter legally.  This memo is based on a decision rendered in a 2012 Board of Immigration Appeals case called Matter of Arrabally. Allowing the immigrant to legally leave and reenter on advance parole means he or she can apply for a green card from inside of the United States–if he or she qualifies. 

Advance parole can be granted to recipients of DACA (deferred action for childhood arrivals) and DAPA (deferred action for parental accountability) if they travel abroad for humanitarian, employment, or educational purposes, which are broadly defined

Leaving the United States under advance parole means that the departure doesn’t legally count, so the 3/10 year bars are not triggered, and the unlawful immigrant can apply for a green card once they return to the United States through 8 USC §1255 if he or she is immediately related to a U.S. citizen.  Reentering the United States under advance parole means that the prior illegal entry and/or presence are wiped out in the eyes of the law.  Crucially, individuals who present themselves for inspection and are either admitted or paroled by an immigration officer can apply for their green card from inside of the United States and wait here while their application is being considered.

In such a case, unlawful immigrants who receive deferred action and who are the spouses of American citizens will be able to leave the United States on advance parole and reenter legally, allowing them to apply for a green card once they return.  Unlawful immigrants who are the parents of adult U.S. citizen children will be able to do the same.  Unlawful immigrants who are the parents of minor U.S. citizen children and are paroled back into the country will just have to wait until those children are 21 years of age and then they can be sponsored for a green card.

According to New York based immigration attorney Matthew Kolken, “President Obama’s policy change has the potential to provide a bridge to a green card for what could be millions of undocumented immigrants with close family ties to the United States.” 

When the legal memo ensures the consistent application of the Arrabally decision, Johnson could grant advance parole to DACA and DAPA recipients who will then be able to leave the United States and reenter to adjust their status to earn a green card if they have a family member who can sponsor them.  Advance parole would wipe out the 3/10 year bars threat for millions of unlawful immigrants and allow those who “touch back” in their home country and return legally to apply for their green cards from inside of the United States–a process called “adjustment of status.” 

This will only apply to those unauthorized immigrants who only have one immigration offense, such as entering unlawfully.  An unlawful immigrant who was deported or left voluntarily and then returned will not be eligible.  Immediate relatives of citizens that overstayed a legal visa are already eligible to apply for adjustment of status if they were previously inspected and admitted despite their overstay, so this policy does not affect them.  Advance parole and legal reentry will only allow those unlawful immigrants who entered without inspection one time to legally leave and reenter the United States where they can then apply for a green card if they have a family member that can sponsor them.

There is a potential legal catch.  To be eligible for parole under the statute, the foreigner would have to be a significant public benefit or be paroled for an urgent humanitarian reason.  However, the parole requirements for DACA recipients who have received parole so far are less onerous.  The “significant public benefit” or “urgent humanitarian reason” are potentially very difficult burdens for the DHS to overcome when granting parole to DACA and DAPA recipients.           

Kolken does not think those legal problems will constrain DHS in issuing advance parole.  “Advance parole is generally granted to recipients of deferred action who are able to establish that they intend to travel for humanitarian, employment or educational purposes,” he said.  “The problem lies with the fact that advance parole does not guarantee readmission into the country, which is why we need uniformity in the implementation of policy by inspecting officers.”  In other words, the current problem with advance parole is the unpredictability of the CBP officers at the port of entry.  The DHS memo should reduce that concern.

Advance parole could allow millions of DAPA and DACA recipients to adjust their status to lawful permanent residency.  By contrast, the 2013 Senate bill was only supposed to legalize around 8 million and over a much longer period of time.  Through manipulating the terribly confused and poorly written immigration laws, this executive action could legalize more unlawful immigrants more quickly than the Senate was willing to.  If he can do this legally (BIG question), one wonders: what took him so long to do it?