Undocumented aliens. Talk about being between a rock and a hard place! Many want to work legally and lead responsible lives, but are locked out by the system. No right to work, no right to be present in the States. In many states they cannot get driver's licenses. Without the right to work - which depends on approval by INS - a Social Security number is simply not possible. The cruelest blow is that they can't even straighten matters out through a good-faith marriage to an American citizen.

"What about amnesty?" you may ask. Well, what of it? The last broad-based program expired over 10 years ago. The events in the wake of the September 11 tragedy have given immigrants little hope of a return of an amnesty program in the foreseeable future.

"Well then, didn't Congress fix the problem in 2001?" Only partially. The LIFE Act did provide that undocumented individuals can become permanent residents, but only if they have an employer or family member who will serve as their legal and financial sponsor in what is often a lengthy and costly process. And it does not apply to cases begun after April 2001.

"But doesn't the law give 'automatic citizenship' to anyone who marries an American citizen?" Not by a long shot. For one thing, the parties to the marriage have the burden of proving that they married in "good faith", and this may require several closed-door interviews with Immigration examination personnel. Few clients look forward to the experience. I cannot think of anything that comes to close to the interview process, outside of the immigration system, short of an IRS audit. Well, perhaps a root canal, or a contested divorce.

Even worse, for the undocumented alien who is married to the American citizen, getting through the process may take years - with no guarantee of success in even the best of marriages. Why is that? Because in 1996 Congress passed a very restrictive, misguided law called the Illegal Immigration Reform and Immigrant Responsibility Act. (I have always thought that to be an interesting choice of words, especially the rather telling lead-off.) The law has been contested on several grounds, but after a half-dozen years many of the harshest provisions have remained.

One of the worst of these prevents, effectively, many undocumented alien from becoming permanent residents. Even if married to American citizens. The offender must, instead, leave the United States and convince a visa officer that an "extreme and unusual hardship" will ruin his American family if he is not allowed to return with the green card.

This procedure to determine whether the alien may return to his family with a green card is called a "section 212 waiver." Unfortunately, it is a particularly risky road to take. Each individual case is decided by a U.S. consular officer sitting at a desk in an American embassy or consulate overseas. The guidelines are not uniform, and there is little room for review of such decisions. In even the best of these circumstances, the section 212 waiver is a costly procedure, it disrupts the alien's family life, and if unsuccessful it may leave him stranded thousands of miles from his loved ones, with no prospect of safe return.

Fortunately, the LIFE Act, with its $1,000.00 "forgiveness" penalty, entered the picture several years ago. It has been a blessing for many undocumented individuals and their families. It allows the individual to remain in the United States and apply for permanent residence, rather than be forced to depart and take her chances with the 212 waiver. The entire case may be handled directly with an INS office in the state of residence. A work permit is authorized. Family unity is preserved. Needless worry is avoided.

But this "forgiveness provision" is the exception, not the rule. At this writing, it only applies to cases begun before May 1, 2001. The frightening prospects of the section 212 waiver continue to haunt the majority of undocumented applicants ... and their American family members. Clearly, some other form of relief is desperately needed.

From an in-depth investigation into the nature of parole, and discussions with other practitioners, I have concluded that parole may be the key to adjustment for the undocumented-alien spouse. Parole has historically been used to allow individuals into the United States on a temporary basis, to allow a final determination to be made as to their rights. It also has application for individuals seeking release from INS detention.

"How exactly does this 'parole' help an undocumented alien to get a green card?" Put simply, parole is a legal status that can give the individual a firm footing, to file the necessary applications for permanent residence with the local INS office, rather than have to take the perilous path of the 212 waiver.

"What does one have to do to qualify?" The law is expressed as either of two standards: The person applying for parole must demonstrate "urgent humanitarian reasons" or a "significant public benefit." Examples are given in the INS regulations, of individuals whose presence is required to attend trials or for protracted medical care.

"Why did we not hear of parole before now?" Because it is a little-known remedy. And because its use has been limited largely to "arriving aliens", like the well-publicized case of the Mariel Cubans some 20 years ago, and to a lesser extent, to individuals held in detention. I am now convinced, having reviewed an INS legal opinion and other INS authority on the subject, that the application of parole to our situation is entirely appropriate.

"How should this new kind of case be handled?" Aside from procedural aspects, which are outside the scope of this article, I believe that a sensible, persuasive approach is to handle these cases in the most personable way possible with the INS local office. Put a human face on the family's situation. Explain how important it is for the husband or wife to stay with the family. What are the family's ties to church, schools, and community life in general? Are there any special medical or emotional needs?

In a word, aim for the high-water mark of the section 212 waiver, "extreme and unusual hardship " to the American family members. Prepare the paperwork carefully, as for a section 212 waiver. Then try to persuade the INS decision-maker that it makes better sense to allow the applicant to remain in the United States, as a productive member of the community and a nurturing, supportive spouse and parent.

As parole is applied in these circumstances, this is an untested area of the law. I choose to regard it as an opportunity. The law says we can help our clients, if we can convince INS to use its discretion favorably. Simple enough, in a compelling case.

We lawyers and our clients have everything to gain, and nothing to lose by trying. And if we do not test our limbs, they will wither and grow weak, and we and our clients will be left with a sense of impotency and failure. We have the capacity, and the strength, to shape our clients' destinies. Let's get started.


Addendum

Excerpt from INS General Counsel Opinion, confirming that parole is now available for individuals other than "arriving aliens":

We conclude that the Service may, in the exercise of discretion, parole any applicant for admission, if the Service finds that parole would serve urgent humanitarian reasons or yield a significant public benefit. INA § 212(d)(5)(A), 8 U.S.C. § 11821(d)(5)(A); 8 C.F.R. § 2.1. Aliens present in the United States without having been admitted or paroled are applicants for admission. Id. § 235(a)(l)(A), 8 U.S.C. § 1225(a)(l)(A). To say that these aliens are eligible for parole, of course, does not mean that they are entitled to parole. Whether to parole any particular alien remains a matter entrusted to the exercise of discretion. Id. § 2l2(d)(5)(A), 8 U.S.C. § 1182 (d) (5) (A). The exercise of this discretion is not subject to judicial review. Id. § 242 (a)(2)(B)(ii), 8 U.S.C, § 1252(a)(2)(B)(ii).

Excerpt from the Immigration and Nationality Act, section 245(a), describing who may apply for permanent residence, within the United States:

The status of an alien who was inspected and admitted or paroled into the United States or the status of any other alien having an approved petition for classification under subparagraph (A)(iii), (A)(iv), (B)(ii), or (B)(iii) of section 204(a)(l) or may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence.

Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.