Details Emerge on President Biden’s Illegal Parole Program

FAIR Take | January 2023

Last week, President Biden announced he will expand an illegal program to allow 30,000 Cubans, Haitians, Nicaraguans, and Venezuelans per month to enter the United States without visas. In doing so, the Biden administration is escalating its plan to circumvent the normal processes for legal immigration —and even outright violate federal law—in order to implement its open-borders agenda.

In general, a foreign national who wants to permanently emigrate to the U.S. must get an immigrant visa—otherwise known as a green card. To get an immigrant visa, foreign nationals have to apply through one of the programs created by Congress and set forth in federal law. Indeed, the Naturalization Clause in the United States Constitution provides that Congress, not the executive branch, has the plenary authority over immigration.

Congress has created several core immigration programs. Broadly speaking, these are: (1) family-based immigration; (2) employment-based immigration; and (3) humanitarian-based immigration, which grants asylum or refugee status to individuals who can establish fear of persecution by their government or a government-like entity. The main difference between claiming refugee status and claiming asylum is physical location: aliens outside the U.S. who meet the criteria to establish fear of persecution may claim refugee status; aliens physically present in the U.S. who meet the same criteria may claim asylum.

These programs have intricate rules, including requirements for sponsorship, limitations on who may sponsor (e.g., employer, family member, citizen, legal permanent resident), commitments of financial support, and other mandates for health screening, criminal background, and national security checks  In addition, employment-based programs typically require specific skill sets to be eligible, and humanitarian programs require (at a minimum) the applicant to establish credible fear of persecution.

Finally, most pathways for legal immigration have numerical caps, only allowing a certain number of immigrants in various categories and from various countries to enter the U.S. each year. These caps, designed to set immigration at a reasonable pace, also create long lines in certain countries where there are large numbers of applicants. As a result, applicants who follow the law often wait for years to have their chance to get a green card and emigrate to the U.S.

Last year, however, the Biden administration circumvented these rules and (illegally) created its own immigration program.  It did this through an orchestrated, massive violation of the parole statute. To most Americans, parole is a term used in the criminal justice system, when a prison authorizes the early release of an offender subject to certain conditions. In the immigration context, however, it has a different meaning.  Immigration parole – often called humanitarian parole, or simply parole – is a procedure, authorized by statute, which authorizes immigration officials to grant entry to aliens without visas on a temporary and a case-by-case basis. The parole statute provides that the government may only grant parole to an alien for “urgent humanitarian reasons” or “significant public benefit.” (See INA 212(d)(5)(A))

Despite the requirement that parole be granted on a case-by-case basis, last fall the Biden administration created an unlawful parole program for Venezuelans. Under this program, U.S. citizens, legal permanent residents, guest workers, other parolees, and even illegal aliens with deferred action may sponsor a Venezuelan national for participation. Sponsors may be individuals filing on their own or individuals filing on behalf of non-profit or community-based organizations. Sponsors must declare their willingness to provide financial support to the beneficiary during the length of parole in the U.S., and must undergo background and security checks.

Once a sponsor has filed the required paperwork and been approved, the sponsored Venezuelan and his/her immediate family members, regardless of where they live in the world, may apply to U.S. Customs and Border Protection (CBP) for authorization to travel to an interior port of entry (i.e. an airport). The aliens must apply for travel authorization (advance parole) through the new “CBP One” mobile app and submit additional biographic information and a photo.

Upon arrival in the United States, CBP will make a separate determination of parole. To qualify for parole, the sponsored Venezuelan must have an unexpired passport, provide for his/her own commercial travel, undergo background and security checks, and comply with vaccination/health requirements (noting the test for tuberculosis is only required within 90 days of arrival). In addition, the principal beneficiary must demonstrate that a grant of parole “is warranted based on significant public benefit or urgent humanitarian reasons, and that a favorable exercise of discretion is otherwise merited.” Eligible Venezuelans will receive parole for up to two years.  Those granted parole are eligible for work authorization. 

Venezuelans are barred from Biden’s parole program if:

• They have been ordered removed within the past five years or are barred from admissibility due to a prior order;
• They have illegally entered the U.S. after October 19, 2022 (with exceptions);
• They have illegally entered Mexico or Panama after October 19, 2022;
• They are unaccompanied minors;

The Biden administration set a cap on the number of Venezuelan beneficiaries for this parole program at 24,000 and provided that the program would sunset when that cap was met. Since then, 15,700 Venezuelans have been granted travel authorization to the U.S. and 10,600 have been granted parole.

On January 5, several days before his border photo-op, President Biden announced that he is expanding the Venezuelan parole program to also permit the entry of Cubans, Haitians and Nicaraguans. The program and eligibility criteria for these new populations are the exact same, except that Cubans, Haitians and Nicaraguans will generally be barred from participating if they have illegally entered the U.S., Mexico, or Panama after January 9, 2023.  At the same time President Biden announced this expansion, he increased the ceiling on the total number of beneficiaries from these four countries to 30,000 per month, combined, and eliminated the sunset provision, leaving the program to operate in perpetuity. Thus, the Biden administration may continue to bring in aliens through these programs for years and there are no restrictions on renewing the parole of those whose two years has expired.

In the published regulations that followed, the Department of Homeland Security (DHS) states that the creation of the new parole programs is in response to a request from the Government of Mexico that the U.S. “provide a lawful process” for these nationals to enter the United States.  DHS also states that the purpose of the program is to “enable individuals to seek humanitarian relief or other immigration benefits for which they may be eligible, and to work and contribute to the United States.”

Yet, there is already a lawful process by which foreign nationals can enter the U.S., work and contribute to the United States.  It’s called an immigrant visa. And there are multiple statutes out there that prescribe who can get one and under which circumstances.  But through the creation of these parole programs, the Biden administration has circumvented Congress to create entirely new programs where individuals who are neither relatives nor employers may sponsor aliens to enter the U.S. for the express purpose of staying here permanently. Even illegal aliens with deferred action and parolees, who by definition have no legal status whatsoever, are allowed to sponsor foreign nationals to come to the U.S.

Nor do these programs serve any legitimate policy purpose. Foreign nationals residing outside the U.S., Venezuelans or any others, do not need parole to apply for green cards. Under the law, they can apply for an immigrant visa from abroad.  That is how they should seek to come to the U.S.: apply from outside the U.S., meet all of the criteria set forth by Congress (whether for family or employment-based visas), and wait their turn to receive a green card. Millions upon millions have done it before. But under Biden’s parole program, Venezuelans bypass the existing process and receive preferential treatment by being paroled into the U.S. before they are even determined to be eligible for a visa and before they have waited in line behind all of the other applicants across the world who have sought to follow our laws.

Furthermore, the argument that this parole program is needed to protect foreign nationals from persecution is false. We have a refugee program, set forth in statute, that authorizes the granting of green cards to tens of thousands of people fleeing persecution every year—people residing outside the United States.  Foreign nationals may apply with the U.N. or, under certain circumstances, directly with the State Department for refugee status if they establish a credible fear of persecution.  Indeed, this is the precise purpose of the refugee program, and this is the “legal pathway” Venezuelans, Cubans, Haitians and Nicaraguans should be required to take if they seek refuge from persecution.

Not only has the Biden administration illegally created its own immigration program, it has done so by expressly violating the parole statute (INA 212(d)(5)). As discussed above, that law provides that parole may only be given on a case-by-case basis and on a temporary basis. It also expressly prohibits the government from paroling refugees into the U.S. without an express exception for the specific individual in question. Here, President Biden has created an entire program based on awarding parole to individuals from specific countries, allowing tens of thousands of foreign nationals to enter the U.S. per month. The program not only circumvents the numerical caps placed on family, employment, and humanitarian-based programs, the creation of express eligibility criteria to a class of persons equaling 30,000 monthly – in perpetuity – undercuts any argument that parole is being granted on a case-by-case basis. Furthermore, the Biden administration’s express declaration that the program is being created with the intention of allowing beneficiaries to apply for green cards is an outright admission that the parole is not being granted on a temporary basis or for a temporary purpose.

As for satisfying the requirement that parole be granted for “significant public benefit” or “urgent humanitarian reasons,” the Biden administration only offers circular reasoning. In each regulation, it parrots the same argument:  that the U.S. will receive significant public benefit because (illegally) paroling in tens of thousands of aliens with the intention of letting them stay permanently will: reduce illegal immigration on the border; allow the government to vet individuals before they arrive; reduce the demand on personnel and resources; and disincentivize the dangerous journey through cartel-infested countries; and fulfill important foreign policy goals.

However, the Biden administration doesn’t need parole programs for that. Instead, it could reduce illegal immigration—and achieve all of the other goals—through the broad use of expedited removal (as required by INA Section 235), detaining asylum-seekers until their claims are adjudicated (also required by INA Section 235), reinstituting the Remain in Mexico program (expressly authorized by statute), and by requiring foreign nationals who reside outside the U.S. and want green cards to apply from abroad.  In short, enforcing current law would largely get the job done.

And while the Biden administration claims it is establishing this parole program to reduce the resource burden placed on DHS, in reality it is only shifting the costs onto American taxpayers. For example, parolees will be eligible for the earned income tax credit (EITC), assuming they meet the other requirements, because they will qualify as “resident aliens” under the tax laws. Similarly, parolees will be immediately eligible for coverage under the Affordable Care Act (Obamacare), because they are “lawfully present.”

In addition, because parolees are deemed “qualified aliens,” they will qualify for federal public benefits such as Medicare and Medicaid – some immediately and some in five years. Certain populations will be immediately eligible for federal public benefits because they are not subject to the five-year waiting period. For example, Cuban and Haitian  parolees with pending asylum applications are immediately eligible, assuming they meet the other criteria. All aliens who are granted asylum or refugee status are immediately eligible for federal public benefits. (8 USC 1613(b)(1))  Likewise, parolees who are pregnant women or children under 21 will, in most states, be immediately eligible for Medicaid and CHIP because Federal law permits states to waive the five-year bar to provide Medicaid or CHIP coverage to aliens who are “lawfully present.” As of 2021, 35 states have chosen to provide Medicaid coverage to lawfully residing children and/or pregnant women without a five-year waiting period. Twenty-eight of these states also cover lawfully residing children or pregnant women in CHIP.

Finally, these benefits (and an untold number of state benefits) will be paid out on a massive scale given the scope of these programs.  Just consider: When the monthly cap on beneficiaries is added up, it allows up to 360,000 additional aliens to enter the country for the purpose of staying permanently. To provide context, 360,000 is more than 2.5 times the number of employment-based permitted annually by statute.  It is also roughly half of the total number of green cards granted in either FY 2021 or FY 2020 (740,002 and 707,362 respectively).

When all of the evidence is added up, it becomes clear that the purpose of Biden’s parole programs is to usurp Congressional authority and simply create “new pathways” for immigration that the Biden administration has not been able to pass through Congress. Americans did not want these programs. There is no legal or policy justification for these programs. Why do we have them? Because open-borders advocates running the Biden administration demanded them. First, their goal was to stop all immigration enforcement. Now they seek to bypass existing immigration programs and simply create their own. All that is left is for the President to order the border be erased from the map.