Parole versus CW status

Thursday’s news release from USCIS titled “Parole for Immediate Relatives of U.S. Citizens and Certain Stateless Individuals” was greeted with jubilation. Many consider it as an answer to their prayers. Others see is as the result of relentless lobbying by many dedicated individuals and organizations. Still others view it as an act of administrative grace from Uncle Sam. In any case, the news was cause for celebration in many families whose fear of separation is allayed, at least for now. It made for a heartfelt thanksgiving for members and friends of the alien worker community.

Almost as soon as the news was out, we started getting questions: Does this mean I don’t have to file for CW? Should I withdraw my CW? Isn’t this better than CW? In today’s column we will try to address these questions and to compare the two forms of status and the advantages and disadvantages of each.

[B]Parole for IRs and stateless[/B]

USCIS has now identified additional classes of aliens to whom parole in place will be available. Instructions as to how and when and where to apply for this parole are not yet available. What we do know is the following:

[B]1.Who is eligible?[/B]

-Parents of U.S. citizens, regardless of the age of the U.S. citizen child and regardless of the parents’ marital status;

-Legally married spouses of U.S. citizens;

-Children of U.S. citizens, so long as they are under age 21 and unmarried;

-Foreign nationals born in what is now the CNMI between Jan. 1, 1974, and Jan. 8, 1978; their legal spouses and unmarried children under the age of 21.

[B]2. Underlying qualifications[/B]

Even if you fall into one of the above listed groups, you are not eligible for parole unless you are also:

-Legally present in the CNMI on Nov. 27, 2011, and

-Residing in the CNMI as of Nov. 27, 2011.

[B]3. Who is not eligible?[/B]

This type of parole will not be available to aliens who are not in status on Nov. 27, 2011. So, if you have an umbrella permit but no employer to file a CW for you, this parole is tailor-made for you. This parole will give you what is called “continued lawful presence;” in other words, you cannot be removed for being out of status. You can still be removed for other reasons of inadmissibility, such as certain crimes, but not for unlawful presence.

-If you were ordered deported by the CNMI authorities, or if you are currently in removal proceedings with ICE, you probably cannot benefit from this type of parole.

-If you status is uncertain, for example if your name was on the conditional umbrella permit list published by the Attorney General, or if you should have gotten an umbrella permit but it was never issued, or if you had a 240(p) permit instead of an umbrella permit, you should consult an attorney to see if filing for this type of parole makes sense for you.

[B]4. What is the benefit of this parole?[/B]

-If you meet the qualifications, you can remain in the CNMI after Nov. 27, 2011, without fear of removal. Of course you must apply for the parole and the parole must be granted to you. Do remember that there is no right to a parole, only eligibility. Paroles are granted under the discretionary authority of USCIS; they are decided on a case-by-case basis. There are no guarantees.

[B]5. How long is this parole good for?[/B]

-At this time, we are told that these paroles will be issued for a period of a little over one year, or until Dec. 31, 2012.

-We do not know whether this parole will be renewable. It is likely that if Kilili’s HR 1466 becomes law, this parole will no longer be available. Kilili’s proposed bill and this parole appear to offer protection to most of same people. If Kilili’s bill becomes law, this parole will no longer be needed except for parents of children born after May 8, 2008.

[B]6. What about work authorization?[/B]

-This parole gives you temporary status only; it does not include work authorization. Once the parole is granted, then you can apply for an Employment Authorization Document, or EAD, by filing Form I-765 and paying a filing fee of $380 to U.S. Department of Homeland Security. You can download the form from http://www.uscis.gov/portal/site/uscis; go to click the Forms tab, and scroll down to I-765.

-If you have no work authorization, you cannot work from Nov. 28 through whenever you receive your EAD. This could easily be a period of three to four months or more.

-Remember, working illegally, that is, without a work authorization or a pending CW-1, can have serious consequences for both the worker and the employer. The employer can be fined and barred from further employment of aliens. The worker may become inadmissible to the United States. In other words, he or she might find it very difficult to obtain any U.S. immigration benefit in the future.

[B]CW and parole compared[/B]

Many people have the idea that they can pick and choose whether to apply for parole or for CW. This is incorrect. If you are legally employed, it is unlikely that you will be granted a parole, even if you qualify. USCIS views parole as a solution of last resort; if you qualify for CW, USCIS will take the view that you should have gotten one. This of course is not absolute, and there are always individual extenuating circumstances that might get you a grant of parole.

Also, you cannot go back and forth between CW and parole. Although you may be able to move from parole to CW, you likely cannot go back to parole status. USCIS considers someone who is granted CW status to have been admitted to the U.S., whereas a person on parole has not been admitted. Once you are admitted to the U.S. you are lawfully inside the U.S., and not eligible for parole. So if both options are in fact open to you, you will have to make a choice.

The primary advantage of CW status is that you can continue working without interruption. If your employer files a CW application for you, postmarked on or before Nov. 28, both your status and your work authorization will continue uninterrupted until your petition is adjudicated. If you file for parole, you will not be able to work for three to four months, possibly more. Another advantage of CW status is relative certainty. If your employer is a legitimate employer, and you are not qualified for another non-immigrant visa (such as an H-1B), and your employer made a good faith effort to hire a U.S. worker, your application for CW is likely to be approved.

Application for a parole is always a gamble; there is no assurance of a decision in your favor, the application is adjudicated on a case-by-case basis, and the decision depends on the discretion of the adjudicator. And there is another uncertainty: this particular parole is good through Dec. 31, 2012, but there is no guarantee that it will be renewed or extended.

This is not to discourage folks whose only option to remain is the CNMI is through this newly announced parole for IRs of U.S. citizens and the stateless born in the CNMI between Jan. 1, 1974, and Jan. 9, 1978. The new parole is great news for unemployed aliens who are parents of U.S. citizen children as well as parents of children born in the CNMI after May 8, 2008. We suspect this is the largest group that the new policy will benefit. The second largest group is likely to be legal spouses of U.S. citizens who do not yet have the economic means to file for permanent resident status. The third largest group, of course, is the “stateless” who have, until now, fallen in the cracks of every prior enactment. To all of these people, the new policy is a great boon and will help to lessen the fear and insecurity that has reigned in the CNMI over the past several years.

We have on several occasions applauded the flexibility USCIS has shown in its handling of the ongoing transition from CNMI to U.S. immigration law. It’s time to do that again: this was a real Thanksgiving gift.

[I]The information contained in this column is intended as general information only, and not as individual legal advice. Readers should obtain professional legal advice before taking action with respect to their individual situations. Readers may submit questions regarding federalization or immigration issues to the authors by email to lexmarianas@pticom.com. Readers may also e-mail written questions through the Saipan Tribune at editor@saipantribune.com.[/I]