Immigration Attorneys in Marietta, GA
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Klinke Immigration Blog

Trying to Expand Parole in Place: Step-Parents

I’ve talked about Parole in Place (PIP) before and what an amazing program it is. In short, it allows certain family members of current and former military service members to be granted “admission” to the United States so they can apply for a green card here instead of having to leave the country and apply for a waiver in order to return as a lawful permanent resident. A grant of PIP allows for adjustment of status in the United States and saves untold stress, time and money. It also shows our military families that USCIS values the sacrifices they make every day for our country.

Currently, USCIS issues PIP based on a 2013 memo that says PIP should be reserved for the “spouse, child or parent of an Active Duty member of the U.S. Armed Forces, an individual in the Selective Reserve of the Ready Reserve or an individual who previously served in the U.S. Armed Forces or the Selected Reserve of the Ready Reserve.”

As is the case in immigration law, each word has a very specific meaning. A “spouse” is the lawful, legally married partner – with the fall of DOMA, we now know that same-sex partners can be spouses. A parent can be a biological parent, but it can also include step-parents in some cases. And a child certainly has a specific meaning in immigration law – someone under the age of 21 and unmarried.

But let’s look a bit more at the step-parent/step-child relationship. Although a “child” under immigration law can be under the age of 21, in order for a step-parent/step-child to meet the definition, the marriage between the biological parent and the step-parent had to have occurred before the step-child was 18 years old. INA § 101(b)(1)(B).

Here’s an example to help illustrate how this works in real life. Lana and Sergei marry. They each have children from prior relationships. Lana has a daughter, Marsha. Marsha is 17 years old when Lana and Sergei marry. Under immigration law, Sergei can consider Marsha his child because she’s under 18. Sergei has a son, Alex. Alex is 19 when Lana and Sergei marry. Under immigration law, Lana cannot consider Alex her child, although Alex is still Sergei’s child for another two years.

If you read the 2013 PIP policy strictly and say only a relationship to a “child” or “parent” can qualify, then in the above example if Marsha enlists in the military (at any time), she can request PIP for both Lana or Sergei because immigration law defines them each as a parent to her. However, if Alex enlists, he can only petition for Sergei to get PIP. He can never request PIP for Lana because immigration will not consider Lana his parent – he was too old when she married his father.

It’s a peculiar situation when a family is split like this. Remember that one reason PIP was created to help alleviate the stress that service members go through if the family has to be separated due to the immigration process and uncertainties. Will Alex’s concentration on his duties suffer less than Marsha’s because his legal relationship with his step-parent was created when he was two years older?

However, USCIS could expand how they exercise discretion and expand the types of family members who might be granted PIP. In a November 2014 memo, Secretary Jeh Johnson requested that the DHS expand the scope of the 2013 PIP memo “to encompass family members of U.S. citizens and lawful permanent residents who seek to enlist in the U.S. Armed Forces” (emphasis added).  The 2014 PIP memo, though, hasn’t been implemented yet and we’re waiting for this expansion to be used in practice.

“Family members” don’t have a definition under immigration law, so certainly older step-children like Alex could be included. It could include grandparents, nieces or nephews. In the real world, we know that families aren’t always ‘traditional,’ but can involve a wide variety of connections and relationships.

By using family members instead of the rigid definition of “spouse, child, or parent” USCIS could look at the underlying facts of a case and help a wide variety of families – all of whom have the same common element of selfless devotion to serving this country. If they are willing to sacrifice their very lives for us, couldn’t USCIS give a piece of paper to a family member that would allow them to stay together in the country they’re serving?

I’m hopeful we’ll have guidance that embraces the 2014 memo soon. We need to help as many of our military families as possible, whenever possible.

– Tracie