economic marginalization essay

Economic marginalization of minorities: Do laws provide the needed protections?

Elaine r.e. panter.

Never in recent history has anti-minorities rhetoric — a nti-immigrants, anti-religious-minorities, anti-LGBTI — been so pronounced in so many countries around the world. Those groups, we are told, are the cause of our current economic crisis because they steal our jobs, fuel criminality and threaten our traditional way of living. And yet, the causes of our economic crisis are probably more nuanced, and initial research seems to suggest that more and not less social inclusion will help us overcome the instability of our times. The exclusion of minorities from the labor force is becoming politically and economically unsustainable for many states that are struggling to retain their legitimacy and strengthen their competitive potential in an increasingly global marketplace . As a consequence, governments, international development agencies and academic institutions are now looking seriously at ways to develop policies that guarantee a more equal and sustainable form of economic development — development that addresses both short- and  long-term economic goals. The World Bank’s Equality Project attempts to address this problem. The idea driving the project is that institutional measures that hamper the access of ethnic, religious and sexual minorities to the labor market and financial systems (such as legal and policy restrictions, or the absence of appropriate, positive nondiscrimination actions) directly affect their economic performance and, as a consequence, represent a cost for the economy: If a sizeable percentage of the population is not given the opportunity to acquire a high-quality education, a good job, secure housing, access to services, equal representation in decision-making institutions and protection from violence, human capital will be wasted, income inequality will grow and social unrest will ensue. The World Bank’s widely cited Inclusion Matters report puts it succinctly: “Social inclusion matters because exclusion is too costly. These costs are social, economic and political, and are often interrelated.” The project collected and validated data on the legal framework of six pilot countries: Bulgaria, Mexico, Morocco, the Netherlands, Tanzania and Vietnam. The methodological approach of collecting cross-country comparable data according to key indicators yielded some general but interesting results, published in a research working paper in March 2017.

First, given the importance of the issue, there is surprisingly little research in the field of nondiscrimination legislation disaggregated by ethnicity, religion and sexual orientation and gender identity. We need more research to understand the problem, calculate the economic costs of marginalization, and conduct comparable cross-country analysis. Second, in the six pilot countries, laws that protect minorities from discrimination in the labor market seem to be quite detailed and comprehensive in their approach, regardless of each country's judicial tradition. However, anti-discrimination laws in the property and social-protection fields in the surveyed countries are often weak and, at times, in direct contradiction with the national nondiscrimination legislation — suggesting there is still little appreciation of the interdependence of sectors like labor and property and public services. Third, of the three groups looked at in the study — ethnic, religious and sexual minorities — the least protected under the law are sexual minorities, who, if they are not persecuted by the state (as they are in Tanzania and Morocco, where homosexuality is a crime), are granted little to no protection under the law against economic marginalization and hate crimes.   Now that the methodology has been tested, the next step of the project would be to scale up the study to a global level and to observe, over time, if well-designed and targeted laws and policies that promote the economic inclusion of minorities have a positive effect on the productivity of these groups and on the country as a whole. Admittedly, integration is difficult, and many other factors can contribute to the growth or stagnation of an economy. Most likely, we will never reach a conclusive answer. What is clear, however, is that people around the world are systematically discriminated against for reasons beyond their control. Perhaps what is needed is a more constructive approach that highlights the opportunities and not the challenges of integration, with the underlying premise that human dignity is not negotiable and that everyone deserves equal opportunities, irrespective of ethnicity, religion, sexual orientation or gender identity.  

• Competitiveness
• Digital Development
• Jobs & Development
• Social Protection
• Netherlands

Get updates from Private Sector Development Blog

Thank you for choosing to be part of the Private Sector Development Blog community!

Your subscription is now active. The latest blog posts and blog-related announcements will be delivered directly to your email inbox. You may unsubscribe at any time.

Legal Reform Expert

Join the Conversation

• Share on mail
• comments added

• Corpus ID: 12131161

Conceptualizing Economic Marginalization

• Published 22 January 2008

4 Citations

Bringing marginalized population intonational stream., achieving economic autonomy for the marginalised nigerian youth, a profile of the rural poor, the impact of human capital -based education and training programs on an economically marginalized rural county in appalachia.

• Highly Influenced
• 10 Excerpts

11 References

Beyond formality and informality, globalization, culture, and the limits of the market : essays in economics and philosophy, a framework for scaling up poverty reduction,with illustrations from south asia, economic policy, distribution and poverty: the nature of disagreements, spatial inequality and development: overview of unu-wider project, membership based organizations of the poor: concepts, experience and policy, poverty and well-being in post-apartheid south africa : an overview of data , outcomes and policy, reality and analysis: personal and technical reflections on the working lives of six women., membership based organizations of the poor, related papers.

Showing 1 through 3 of 0 Related Papers

Browse Econ Literature

• Working papers
• Software components
• Book chapters
• JEL classification

More features

• Subscribe to new research

RePEc Biblio

Author registration.

• Economics Virtual Seminar Calendar NEW!

Conceptualizing Economic Marginalization

• Author & abstract
• Download & other version
• Related works & more

Corrections

• Kanbur, Ravi
• Ravi Kanbur

Suggested Citation

Download full text from publisher, other versions of this item:.

Follow serials, authors, keywords & more

Public profiles for Economics researchers

Various research rankings in Economics

RePEc Genealogy

Who was a student of whom, using RePEc

Curated articles & papers on economics topics

Upload your paper to be listed on RePEc and IDEAS

New papers by email

Subscribe to new additions to RePEc

EconAcademics

Blog aggregator for economics research

Cases of plagiarism in Economics

About RePEc

Initiative for open bibliographies in Economics

News about RePEc

Questions about IDEAS and RePEc

RePEc volunteers

Participating archives

Publishers indexing in RePEc

Privacy statement

Found an error or omission?

Opportunities to help RePEc

Get papers listed

Have your research listed on RePEc

Open a RePEc archive

Have your institution's/publisher's output listed on RePEc

Get RePEc data

Use data assembled by RePEc

• Search Menu
• Sign in through your institution
• Advance articles
• Author Guidelines
• Submission Site
• Open Access
• About International Journal of Constitutional Law
• Editorial Board
• Advertising and Corporate Services
• Journals Career Network
• Self-Archiving Policy
• Dispatch Dates
• Journals on Oxford Academic
• Books on Oxford Academic

Article Contents

1. introduction, 2. poverty and marginalization in malawi, 3. the poor and the law, 4. what shapes the legal voice of the poor, 5. what makes courts responsive to the voice of the poor, 6. the law and the legal system, 7. concluding reflections.

• < Previous

Courts and the poor in Malawi: Economic marginalization, vulnerability, and the law

• Article contents
• Figures & tables
• Supplementary Data

Siri Gloppen, Fidelis Edge Kanyongolo, Courts and the poor in Malawi: Economic marginalization, vulnerability, and the law, International Journal of Constitutional Law , Volume 5, Issue 2, April 2007, Pages 258–293, https://doi.org/10.1093/icon/mom002

• Permissions Icon Permissions

Malawi's democratic Constitution of 1994 shifted the law in a pro-poor direction. With the judiciary emerging as a surprisingly strong institution in an otherwise weak political system, one might expect a body of pro-poor jurisprudence to develop. This has not been the case, and this article investigates why. After considering patterns of poverty and the role of law in the dynamics of economic marginalization in Malawi, we examine factors assumed to influence the use of courts by the economically marginalized, the strength of their legal voice, and the response of the courts to poor people's social rights claims. We find an interplay between factors impeding the demand for pro-poor justice as well as its supply: lack of litigation resources; high access barriers; the pull of alternative institutions; and the nature of Malawi's legal culture.

The adoption of a democratic Constitution in Malawi in 1994 infused the law with a transformative ambition 1 and, presumably, rendered the legal system better disposed toward the poor, at least in formal terms. This came about in light of the document's establishment of human rights and equality as core constitutional values and because of the constitutional recognition of social rights. 2 The Malawian judiciary, which was marginalized during Hastings Banda's thirty years of authoritarian rule, emerged as a surprisingly strong institution in an otherwise weak political system. 3 With a pro-poor Constitution and a politically astute judiciary, conditions seemed propitious for the emergence of a transformative jurisprudence that could alter structured inequalities and power relations and improve the situation for the poor and marginalized. 4 In the following pages, we assess to what extent the living law reflects this constitutional promise. We aim to understand what conditions affect the use or nonuse of the courts by economically marginalized people in Malawi, what determines the strength of their legal voice, and what shapes the courts’ responses. The focus is on litigation that aims to advance the socioeconomic rights of poor people—cases that are significant from a perspective of social transformation.

We start by examining the structure of economic marginalization in Malawi and the dynamics that contribute to the production and reproduction of poverty; we will consider the role of law in these processes. Key concepts of poverty, marginalization, and vulnerability are defined and situated in the Malawian context. And before assessing how Malawian jurisprudence has developed in areas most significant to poor people, we will look at how the formal legal framework addresses poverty and marginalization, focusing on social and economic rights.

There is little trace in the existing jurisprudence of the progressive promises contained in the letter of the law. To see why this is so, we use a theoretical framework analyzing the legal process into five stages: voice, or the legal mobilization, articulation, and lodging of claims; the responsiveness of the courts; the capability of the judges to give effect to the rights of the poor; and the implementation and systemic change resulting from the judgment and from the litigation process itself. For each phase a number of factors combine to determine the outcome. Given the scarcity of pro-poor jurisprudence in Malawi, we concentrate on the first two stages—on factors that affect poor people's legal voice and on the courts’ response to claims voiced by or on behalf of economically marginalized people.

The Supreme Court of Appeal and the High Court are the courts of record in Malawi and the only courts with jurisdiction to interpret constitutional rights. The Supreme Court, headed by the chief justice, is the highest appellate court and ultimate judicial authority. 5 The High Court, immediately below, has unlimited original civil and criminal jurisdiction. 6 It sits as a three-member panel in constitutional cases 7 and hears appeals from subordinate courts—magistrates’ courts and the Industrial Relations Court. 8 The Constitution also provides for the establishment of traditional local courts. 9

In Malawi, the need for pro-poor social change is immense. This landlocked country in southern Africa is one of the world's least developed. Its 94,080 square kilometers of land and 24,400 square kilometers of fresh water is home to approximately 12 million people, the majority of whom are poor, 10 poor in the sense that their conditions prevent them from living a long, healthy, and creative life and preclude the enjoyment of a decent life worthy of self-respect and the respect of others. 11 This understanding, drawing on Amartya Sen's conception of poverty as capability deprivation, is the basis for the annual Human Development Report 12 produced by the United Nations Development Program (UNDP), and it resonates with how Malawians understand poverty—“as a state of continuous deprivation or a lack of the basics of life.” 13 The average household income in Malawi is around 50,000 Malawi Kwacha (US$400) per year, but this figure conceals large inequalities. 14 The median per capita income of the richest 10 percent of the population is eight times greater than that of the poorest 10 percent. Fifty-two percent of the population is poor, with 22 percent being unable to meet the minimum standard for the daily recommended food requirement. 15 International measures of poverty and development confirm the picture. UNDP's 2006 Human Poverty Index for Least Developed Countries ranks Malawi at 83 out of 102 developing countries, and the 2006 Human Development Index places it at 166 out of 177 countries. 16

While poverty in Malawi is “widespread, deep and severe,” 17 some groups are disproportionately affected, due to the dynamics of marginalization and vulnerability. Marginalization is the deliberate location of a political, economic, or social group at the periphery of material advantage or power by those with political or legal resources, while vulnerability is the degree of resilience against shock, or “the likelihood that a shock will result in a decline in well-being.” 18 Vulnerability may arise from an individual's inherent natural characteristics, such as youth or disability, but it may also be the result of marginalization and stigmatization. 19 To understand the role that the law and the judiciary can and do play for the poor, it is necessary to appreciate the location of particular social groups in relation to the center of political power and material resources; the comparative susceptibility of groups to shocks and risks; and the patterns of social and economic exclusion.

In Malawi, political and economic marginalization is pegged to gender and geographical location (urban/rural, region), class, and race. Historically, women, rural communities, peasant farmers, and workers have been susceptible to exploitation and have been shunted to the periphery of political and economic power by laws and policies that promoted the interests of men, urban elites, and colonial and postcolonial landowners and employers. Women, children, and rural peasants are particularly affected by poverty. The average yearly income for male-headed households is US$415 and that of female-headed households is US$250. Ninety percent of poor people live in the rural areas. Households in urban areas have an income almost three times higher than rural households and, while 25 percent of urban dwellers live in poverty, 56 percent in the rural population are considered impoverished. There are similar differences regarding literacy and formal education, which is significant, since illiteracy locates people at the periphery of economic and political activity, and education is used as a qualification for political office and participation in most economic and political decision-making processes. The literacy rate of women is 50 percent against 76 percent for men. In urban areas, 86 percent of the population is literate, compared with 61 percent of rural dwellers.

Regional patterns are interesting, given the significance of region as a political identity marker in Malawi. 20 Poverty is most prevalent in the populous southern region (60 percent), followed by the sparsely populated and politically marginal northern region (54 percent). The central region, home to the capital, Lilongwe, has the lowest proportion of poor people (44 percent). Here, literacy does not follow income distribution: northerners are significantly more literate (80 percent) than people in the central (62 percent) and the southern (61 percent) regions. 21

The marginalization of women, rural peasants, and workers is both a result and a cause of their political weakness. While the involvement of these groups was critical during the campaigns for decolonialization and democratization, power was ceded to a ruling class of men whose interests coincided with those of the landowners, employers, and the emergent urban middle class. The latter's interests displaced those of other groups, who were excluded subsequently from decisions on the distribution of resources and power. Political weakness reinforced marginalization, causing further political weakness. This malign dynamic—where marginalization is both a result and a cause of political weakness—is strong in Malawi, where the political system is the primary vehicle for social mobility. Donor dependency feeds the cycle by causing an outward orientation among the political elite, delinking it economically and politically from the poor majority. Since the transition to democratic rule in 1994, the social position of vulnerable groups has declined. Reforms have steered toward more privatization and less investment in social services, thus degrading the public mechanisms available to people who lack the means to arrange private protection against such risks and shocks as disease, food shortage, and unemployment. The quality of governance has deteriorated; corruption is rife; and the political institutions are generally unresponsive to the concerns of poor people. Symptomatic of this state of affairs, during the famine that struck Malawi in late 2005 and early 2006, infighting over positions and privilege paralyzed Parliament and hampered the government's ability to respond to the humanitarian challenge. 22

In Malawi, as elsewhere, law is an important element in the dynamics of economic marginalization that produce and reproduce poverty. The role of law may be positive or negative. Poor Malawians have less legal protection for their livelihoods. Being reliant on customary land, their land rights do not have the same protection that private landowners have against expropriation and land-grabbing. Private ownership rights are protected over traditional land use. Poor people are also more vulnerable to theft and other crimes. Theft of crops accounts for 17 percent of crimes in Malawi, and “the highest percentage of households to have been victimized by crop theft are very poor, that is [the 30.8 percent of the population] earning less than [$5.00] a month . . . . Given the high percentages of Malawians who rely on their own produce for subsistence, theft of these crops can threaten the ability of victimized households to survive, particularly in times of food shortages.” 23 Poor rural people have limited recourse to justice. Most have their property rights settled according to traditional norms, where women and children's rights to land and property are weak, contributing to the widespread feminization of poverty.

Poor people often live their lives outside or in breach of the law—as squatters; illegal immigrants; or earning a livelihood in the informal labor market by illegal logging, poaching, or other criminalized activities. This increases their vulnerability to corruption and abuse, including that from state agencies selectively enforcing the law against them, such as when sex workers are arrested, squatters evicted, 24 or, as in the recent campaign to clean up the country's cities, street vendors are chased away, their goods looted and destroyed. 25

In these law-related cycles of economic marginalization, the lack of legal protection contributes to poverty; poverty drives lawlessness, which again contributes to the (re)production of poverty. But law may also play a positive role. The adoption of the 1994 Constitution represented the most radical reform of formal law in Malawi's history, establishing a legal regime predicated on principles that claimed to transform society and promote the welfare of all sections of the population, particularly those hitherto marginalized. Among the central tenets of the Constitution are nondiscrimination and the recognition and protection of human rights for all; the promotion of open, accountable, and transparent government; and the requirement that all institutions and persons should uphold the rule of law. 26 The Constitution also lays down the principles of national policy that should guide state priorities. 27 Taken at face value, they constitute a policy commitment to reduce the country's poverty, particularly in rural communities, with gender equality, literacy, law and order for all, and integrity and probity in public institutions as stated goals and priorities. The constitutional reform established parameters for the renovation of law and jurisprudence that would be, potentially, of great relevance to poor and marginalized Malawians. In the following, we examine the legal status of social rights, that is, the legal norms most directly aimed at reducing social injustices and marginalization.

3.1. The legal status of social rights

(1) All persons and peoples have a right to development and therefore to the enjoyment of economic, social, cultural and political development and women, children and the disabled in particular shall be given special consideration in the application of this right. (2) The State shall take all necessary measures for the realization of the right to development. Such measures shall include, amongst other things, equality of opportunity for all in their access to basic resources, education, health services, food, shelter, employment and infrastructure. (3) The State shall take measures to introduce reforms aimed at eradicating social injustices and inequalities. (4) The State has a responsibility to respect the right to development and to justify its policies in accordance with this responsibility. 31

Unlike the African Charter, which defines the right to development as a peoples’ right, the Malawian text, in referring to the right of “all persons and peoples” to development, is open to individual as well as collective claims. 32 It is included as a justiciable right in the Constitution; hence, in theory, it provides a basis for marginalized groups to challenge policies and claim equal access to resources and services. 33

As in many African constitutions, a wide range of social rights is recognized in Malawi's Constitution as a series of principles of national policy 34 concerning such issues as gender equality, nutrition, health, environmental rights, education, rights of the disabled, children, the elderly, and the family. The principles are directive in nature and not directly justiciable, but “courts shall be entitled to have regard to them in interpreting and applying any of the provisions of this Constitution or of any law or in determining the validity of decisions of the executive and in the interpretation of the provisions of this Constitution.” 35 An activist judiciary could thus give the directive principles significant jurisprudential force.

The right to education is recognized both in the Bill of Rights and as a directive principle. This dual commitment is positive in one sense, but it also renders unclear the parameters for its justiciability and detracts from the apparent breadth of the formulation in the Bill of Rights. Other key socioeconomic rights, such as the rights to food, water, adequate housing, social security, and a sufficient standard of living, are not expressly recognized but may, to some extent, be taken as implicit to varying degrees in the right to life, the right to development, and the directive principle on nutrition. 36

Malawi has also entered into international agreements giving rise to social rights obligations, such as the African Charter on Human and People's Rights, 37 the International Covenant on Economic, Social and Cultural Rights, 38 the Convention for the Elimination of All Forms of Discrimination against Women, 39 and the Southern African Development Community (SADC) Charter of Fundamental Social Rights and Protocol on Health. According to section 211(1) of the Constitution, Malawi is obliged by an international agreement when it is ratified by Parliament. 40 This does not, however, automatically make it part of national law.

The two-step system of implementing international law subscribed to by Malawi implies that international law only becomes applicable once it is incorporated into the laws of the country through an Act of Parliament. 41 The most relevant treaties have yet to be domesticated through legislation and cannot be relied on directly to enforce the social rights they provide for. This is somewhat mitigated by the principle of interpretation that obliges courts to interpret laws in such a way as to avoid creating breaches with international law or international agreements. 42 Also, the 1992 case of Chihana v. Republic established that the Universal Declaration of Human Rights is part of Malawian law. 43

Other significant aspects of the Constitution, from the perspective of marginalized people, are the prevention of discrimination, protection from the abuse of power and corruption, and protection for personal security and property rights. 44 The Constitution provides a basis for challenging systematic socioeconomic exclusion. Several provisions address discriminatory practices; the equality clause (section 20) prohibits discrimination on grounds of race, color, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability, property, birth, or other status, while allowing for legislation addressing inequalities in society (affirmative action).

Problems of gender-based injustice are addressed at many levels, which is important given the strong gender dimension to poverty. Cultural practices placing girls and women at a disadvantage in relation to property and inheritance are widespread in Malawi, as is domestic violence. It is thus important that the Constitution—while protecting marriage and the family as a union—states that “each member of the family shall enjoy full and equal respect and shall be protected by law against all forms of neglect, cruelty or exploitation.” 45 This applies to “all marriages at law, custom and marriages by repute or by permanent cohabitation,” which is crucial. Women are often unable to negotiate a formalization of their relationships, and cultural norms regularly deny women rights to property and custody of children when informal marriages break up or the partner dies, placing them in a precarious situation.

Malawian law is here—on paper—more progressive than most countries in the region, where marriages must be formalized either through registration or traditional practices, such as payment of lobola (bride price), to fall under the law. Section 24 confirms the right of women to be free from discrimination, and to full and equal legal protection, including equal capacity to enter into contracts; acquire and maintain property; to have custody, guardianship, and care of children; and to hold citizenship and claim nationality. On the dissolution of marriage, women have the right to a fair disposition of property held jointly with a husband and to fair maintenance. Laws discriminating against women shall be invalid and legislation shall be enacted to eliminate discriminatory customs and practices, including deprivation of property obtained by inheritance. To eliminate gender-based discrimination is also a directive principle of national policy. On its face, the Constitution provides a solid foundation for legal challenges to improve women's social rights.

The failure to secure the property rights of poor people contributes to their marginalization. 46 Land rights are of particular importance in rural Malawi, where 90 percent of the poor live, and land shortage is a major cause of poverty. 47 The Constitution secures the right to property, 48 but private land ownership is rare, and poor people depend on access to customary land for their livelihood. Customary property and land use is legally less secure than private title, and large tracts of customary land have been converted into public and private land, contributing to land shortages among the rural poor. 49 Proponents of individualizing land titles argue that this would provide security and collateral enabling development, while critics hold that this is likely to reinforce highly unequal ownership structures and that, for the poorest, improved rights to customary land may be more favorable. 50

The constitutional provisions that prima facie protect poor people and that could be used to alter structured inequalities in the labor market are the rights to engage in economic activity; 51 to nondiscriminatory, fair, and, safe labor practices, to fair remuneration, and to form and join trade unions; 52 the protection against slavery, servitude, and forced labor; 53 and the rights of children to be protected from economic exploitation, work, or punishment that is hazardous or harmful to their health or development. 54 To enable poor and marginalized people to claim their rights, the Constitution provides rights of access to justice and legal remedies, to administrative justice, and to use one's language of choice. 55

Where does this leave us with regard to the legal basis for challenging economic marginalization in Malawi? No doubt, the legal changes in the mid-1990s made the country's legal system more sensitive to the rights and needs of poor and marginalized people. While there are lacunae and ambiguities that could hamper litigation, the textual foundations for a transformative, pro-poor jurisprudence are in place. But to what extent is the potential realized?

3.2. The poor, the courts, and the living law

In Malawi, there is a striking paucity of social rights jurisprudence compared with civil and political rights cases. Among the decisions reported in the first sixteen volumes of the Malawi Law Report Series, covering the period 1923 up to 1993, none relates to social rights, save for a few employment cases. In contrast, there are numerous cases on civil and political rights. The picture is similar since the entry into force of the 1994 Constitution, despite the various forms of social rights protection enshrined in that text. Civil and political rights cases still dominate and, to the extent that litigation involves social rights, it deals with employment and education rights of non-poor litigants, rather than health, housing, water, or other social rights critical to transforming the lives of marginalized groups.

Where the courts could have developed a pro-poor jurisprudence they have generally failed to do so, as in Mchima Tea and Tung Estates Co. Ltd v. Concerned Persons. 56 The plaintiff company operated a tea plantation in southern Malawi on land acquired by its predecessors during the colonial period. The current freehold title had been acquired under the previous, racially discriminatory system of land laws. Land shortages in the early 1990s led people from surrounding villages to enter and occupy parts of the plantation. The plaintiffs, as successors in title to the original freeholder, successfully sued for the squatters’ eviction. The defendants argued that they had title to the land based on their precolonial ancestral title. In upholding the tea estates’ claim, the High Court failed even to consider whether customary land law could limit their ownership rights. A point of departure could have been the concept of aboriginal land title developed in the Australian cases of Mabo v. Queensland [No.2] 57 and Wik v. Queensland, 58 where the court found that colonial land titles did not extinguish the traditional customary titles. “It is only the fallacy of equating sovereignty and beneficial ownership of land that gives rise to the notion that native title is extinguished by the acquisition of sovereignty.” 59 The court could have related the Australian concept of aboriginal land title to the nemo dat quod non habet rule in Malawi's law of contract (that one cannot transfer a title one does not legally have), followed by a critical evaluation of capacity of the chiefs, from whom colonial settlers acquired the land, to transfer such titles. Lacking such a jurisprudential inquiry, the High Court relied on idealized conceptions of the parties as owners per se and trespassers per se, abstracted from the reality that their present property relations reflect the domination of one legal system over another. The High Court may have sought to avoid legitimizing land-grabbing, which could have destabilized the land market and discouraged investors. But a judicial position protecting private rights, regardless of the history of their acquisition, reinforces unfair economic inequalities, favors those with the resources to acquire property at market prices, and hinders pro-poor social transformation. 60

There is precedent for ownership rights to customary land in a 1997 judgment, Administrator, Estate of Dr. Banda v. Attorney General, which finds that the right to property protects ownership of the beneficial interest in customary land. 61 “[This elevates] customary land to the same standard of protection as registered land. It can therefore not be expropriated by the government unless it is needed for public utility, adequate notice and compensation has been given, and there is a guarantee of appeal.” 62 This establishes a precedent that could protect poor people's customary land rights, although the ruling itself benefited one of the richest and most powerful families in the country, that of the former life president.

Despite a sound constitutional basis for advancing gender equity, Malawian courts have failed to realize this potential in their jurisprudence. This militates against the delivery of pro-poor justice and entrenches the feminization of poverty. In relation to marriage, courts reinforce gender inequality by taking a conservative view of what constitutes a marriage. Although section 22 of the Constitution recognizes marriage “by repute” and “permanent cohabitation,” 63 the courts generally adopt the traditional position that no marital rights can be derived unless the partnership is formalized as marriage under the marriage act, or particular customary law procedures, which typically require agreement between representatives of the two parties and, sometimes, payment of lobola . Prevailing gender inequalities cause the woman to lose out, particularly with regard to property, if her relationship with a man is declared by the courts not to be a marriage. Judges have also restricted the rights of women to sexual autonomy, thus reinforcing gender inequality. 64

Although some members of the judiciary have indicated to the Law Commission a willingness to uphold marriages by repute or permanent cohabitation as a means of protecting the rights of women in long-term relationships, 65 the majority are likely to be dissuaded from doing this in practice for at least two reasons. The first is the need for the judiciary to maintain its legitimacy by aligning itself with prevailing social norms. To recognize such marriages would contradict the dominant social view, which is that the cohabitation of a man and a woman without the formality of marriage is not only inimical to Malawian tradition and culture—which regard marriage as a formal union of the families of the spouses and not merely a relationship between the two individuals—but is also fundamentally immoral. 66 The second consideration is the current absence of legal rules and precedents that clearly define the constitutive elements of marriages by repute or permanent cohabitation. The Law Commission has implicitly acknowledged the latter problem by recommending that Parliament enact legislation that sets down, among other points, “clear guidelines on the requisite extent of repute or length of cohabitation necessary to constitute [marriages by repute or permanent cohabitation].” 67

We find no social rights cases targeting structured inequalities or addressing the power relations that marginalize certain groups; nor do we find landmark judgments concerning the definition, interpretation, or application of social rights. A rare social rights–related lawsuit, decided in favor of relatively poor litigants, is a case against the Malawi Housing Corporation. Tenants, assisted by the Consumers Association of Malawi, went to court over a doubling of the rent. On April 27, 1997, the High Court ruled the Housing Corporation in violation of section 7 of the Malawi Housing Act, defining it as a non-profit-making entity, and ordered it to limit the increase to 26 percent. 68 While interesting from a pro-poor perspective, the case was not argued on the basis of social rights.

Why is it that this legal framework—clearly favorable to litigation that would advance the social rights of marginalized sections of society—has not, in twelve years, produced significant transformative jurisprudence? Is it because such litigation has not been forthcoming (what we may call a demand-side failure)? Or is it because the courts have not been willing to take the cases on or have not handled them in ways that give effect to the claims (supply-side failure)? To understand what impedes the development of pro-poor jurisprudence in Malawi, it would be useful to consider the litigation process and analyze what it takes for such a case to succeed—for the claim to be articulated and voiced, as a case before the courts, and for the case to be accepted into the legal system and result in a pro-poor judgment.

3.3. Litigation dynamics: Poor people's legal voice and court responsiveness

Several hurdles must be overcome for litigation to advance poor and marginalized people's social rights. Litigants must be able to identify and articulate their rights claim and mobilize the necessary resources to voice it as a legal claim before a court, or someone must do it on their behalf; judicial bodies, in turn, must be responsive and accept the claim as belonging within their domain; and the judge(s) must be capable of addressing the claim and finding effective remedies. Further, to have a social impact, a judgment must be accepted, implemented, complied with, and translated into systemic change through social policy and political practice. Figure 1 shows the various stages of the litigation process. 69 The downward sloping arrow indicates that, even without a judgment affirming the claims (because the case was lost or never accepted by the courts), the process of legal mobilization and litigation may influence political processes and yield results on the ground. Given the absence of social rights jurisprudence in Malawi, we concentrate on the two first phases, identifying the factors that, first, obstruct the legal voice of the poor and economically marginalized and that, second, make the courts unresponsive to their social rights claims.

The litigation process

People's ability to voice rights claims is related to their opportunity situation—that is, to their resources and the formal, or systemic, and informal barriers that define them as litigants in the legal process. 70 These are outlined in figure 2 , below. Whose claims are voiced, and how effectively, depends on the resources of the individuals and the groups concerned when articulating and mobilizing their case, as well as on the interaction between marginalized groups and public interest litigators. Professional assistance is of particular significance in social rights cases, which are often legally complex and energetically contested and where there is scarce local jurisprudence on which to draw.

Factors affecting litigants’ voice

For litigation to materialize from marginalized groups, they must understand that the situation they are experiencing is violative of their rights and be aware that legal remedies exist; they must be able to identify their grievance in a way that is sufficiently explicit as to provide a basis for litigation; and must be able to identify who bears the legal responsibility. And they must be capable of mobilizing legal resources in order to transform their grievances into legal claims that the system will accept. 71 At each stage there are barriers of various kinds—practical, motivational, and formal.

4.1. Practical barriers

At the practical level, lack of knowledge prevents people from seeing their problems and grievances as rights violations and, therefore, actionable. Insufficient information about who is to blame, how they can be held responsible, and where claims can be addressed are common obstacles. Legal literacy and legal aid programs that can help people overcome these obstacles are scarce in Malawi. For poor rural people, legal expertise is generally out of reach. 72

That the official court language in Malawi is English is another barrier. Eighty percent of the evidence in magistrates’ courts is given in local languages and has to be translated into English for the official record, thereby slowing the process. 73 As the judiciary itself has concluded, “public perceptions reveal that the judiciary is not fully responsive to the needs of the public in terms of the language used in judicial proceedings, the rules of procedures followed and accessibility and affordability of litigation.” 74

The cost of litigation is another discouraging factor. In Malawi, the direct costs, in terms of court fees, are low. Litigants in the High Court pay approximately US$.50 to lodge an application for judicial review or to file a basic writ of summons, 75 and even less to institute proceedings in a magistrate's court. Still, with an average per capita income of less than US$1 per day, these are substantial costs for the poorest. Further, incidental costs often run high: travel for litigants and witnesses; alternative costs of taking time off; and costs of accessing legal assistance pose substantial hurdles. There is limited access to courts in the rural areas and “the courts which are closest to the poor are poorly resourced, poorly managed and offer a limited range of services.” 76 Malawi has 195 magistrates’ courts, located mainly in urban areas and community centers. 77 The nearest court might be forty kilometers or an eight hours’ walk, and public transport, where available, is prohibitively expensive.

The main tool for vindicating social rights against the state is through judicial review. This raises practical and financial barriers, since the interpretation and application of the Constitution is the preserve of the High Court, 78 sitting in the urban centers of Blantyre, Lilongwe, and Mzuzu—with the Supreme Court of Appeal only in Blantyre. 79 Since 2004, matters expressly and substantively relating to, or concerning the interpretation or application of, constitutional provisions must be heard and disposed of by a constitutional panel consisting of not less than three judges (rather than the usual one). This further strains the system's capacity and adds to the delays. 80 Technically complex judicial review proceedings require professional legal skills, and for this to be a channel for poor and marginalized people to claim their social rights free legal assistance is crucial.

4.2. Formal barriers

The formal barriers of the legal system—the nature of the law and operation of the courts—cannot help but affect marginalized groups’ motivation and their ability to voice social rights claims. A clear legal basis for social rights is conducive to rights-asserting litigation; similarly supportive would be the possibility of class action suits and lenient criteria for locus standi , thereby allowing organizations and individuals to litigate on behalf of others. We concluded above that the Malawian Constitution provides a reasonably sound legal basis for social rights; it requires the state to introduce reforms aimed at eradicating social injustices and inequalities; confirms that all individuals and groups have “a right to development and, therefore, the enjoyment of economic, social, cultural and political development”; 81 and it obliges the state to take the steps necessary to realize these goals. 82 The principles of national policy require the state to pursue and prioritize gender equality, adequate nutrition for all, healthcare, rural life, education, and literacy. 83 This should create a conducive environment for social rights litigation.

However, the Malawian courts maintain strict criteria for legal standing. A litigant must have a direct interest in the case, and there are no provisions for public interest litigation. We return to this in the discussion of the courts’ responsiveness to social rights claims. For now, it suffices to note that the restrictions on standing affect organizations’ motivation to engage in litigation. It also affects the type of cases that can be litigated in Malawi, preventing test cases that could have a potentially greater transformative potential than narrow individual claims.

Legal formalities are important when it comes to poor people's ability and motivation to take their case to court. Where access is easy and the courts aid litigants in investigating their cases, as is the arrangement in Costa Rica and India, poor litigants depend less on legal expertise than in those venues where legal procedures are complex and litigants must provide all the evidence and present arguments in a prescribed format. 84 Malawi belongs to the common law tradition and the legal system is litigation-driven and reactive, with litigants bearing full responsibility for researching and presenting their case. The courts provide no assistance, and the legal bureaucracy is complex. Even experienced litigators may have cases thrown out of court that are not appropriately lodged or find that evidence is ruled inadmissible for not being presented in the right manner. 85 The formalism and litigation-dominated nature of the Malawian legal system, combined with the restrictions on public interest litigation, present substantial barriers to social rights litigation by or on behalf of the poor and economically marginalized.

4.3. Motivational barriers

Poor people often view the legal system with distrust and fear, and not without reason. The law reflects the power relations in society and often has an anti-poor bias, if not formally, then in its application. 86 As noted, many poor people live their lives in various states of illegality, subjecting them to ongoing insecurity and vulnerability and contributing to their poverty. 87 The law offers them little protection, and the justice system is encountered mainly in a punitive capacity, often in ways perceived as arbitrary and corrupt, particularly in developing countries whose legal systems often are weak and subject to elite capture. 88 When the law, and the legal system, lacks legitimacy, because it is perceived as a tool of domination or is at odds with socially entrenched customary law, 89 this dampens any inclination to turn to the state for support. In Malawi, research indicates that the courts generally enjoy public confidence. In spite of corruption allegations against the lower judiciary, and contrary to the judiciary's self-critical assessments, a 2004 study found that over 80 percent of respondents believed that the courts performed their functions satisfactorily. 90 It is thus unlikely that lack of legitimacy is a major factor in explaining the absence of legal mobilization.

4.4. Alternative arenas

We have examined factors that discourage poor people from taking social rights cases to court (push effects), but possible pull effects from alternative arenas are also relevant. Any inclination to assert social rights through legal action may well depend on the availability of other channels for social change, such as electoral mobilization, advocacy and lobbying of political bodies, strikes, demonstrations, media campaigns, or alternative courtlike institutions such as ombudsman institutions, human rights commissions, or traditional courts and tribunals. If there are more arenas in which to accommodate social rights mobilization, this may explain why marginalized groups and their organizations rarely use the courts to pursue social justice.

In Malawi, there are indeed alternative channels open to mobilization for the advancement of marginalized groups’ health, education, food, water, and social interests, and these may be used by the poor to direct their individual grievances. These options explain, to some extent, why the courts are rarely used. However, the alternative channels are also impeded by a number of well-documented factors: elections are insufficiently inclusive of the groups critical to social transformation, such as women, the rural and urban poor, and other vulnerable groups; 91 representative political bodies are weak; strikes and demonstrations are often subjected to heavy-handed countermeasures by the state, whose police force has used force routinely to disperse even peaceful assemblies, 92 and by employers, who often victimize workers who participate in strikes; 93 and the public media are largely biased in favor of the state while private media has limited reach. 94

Courtlike institutions—the ombudsman's office, the Human Rights Commission, and traditional courts—provide quicker and cheaper alternative channels for social rights complaints. The office of the ombudsman has been active in the promotion and enforcement of employment and education rights but has been a victim of its own popularity and currently has a heavy backlog of cases. Further, remedies are limited. The Constitution empowers the ombudsman to direct administrative action; to order the appropriate authorities to provide for redress of future grievances; and to refer matters for prosecution. 95 The ombudsman does not, however, have the power to enforce the decisions, and the High Court has refused to do so, holding that it lacks authorization. 96

The Human Rights Commission's primary mandate is to investigate rights violations and make recommendations aimed at protecting human rights. 97 It is required to submit annual reports to Parliament. In 2004 the commission reported five complaints related to violations of health and social services; sixteen pertaining to the right to education; twenty-two related to the right to development; fifty regarding children's rights; and ninety-two complaints connected to labor rights. 98 This is a substantial number, but more research is required to properly assess the complaints and the effects on litigation of this alternative arena for social rights complaints.

The traditional courts currently operating at the local level in Malawi are not part of the formal justice system. They are not allowed to adjudicate, only mediate, and are what poor people in rural areas mainly resort to for their justice needs. Their interpretation of customary law—for example, concerning land and inheritance—is of great social relevance, not least for the condition of women. But given their informal, oral, and decentralized nature, it is difficult to assess the effects of traditional courts and how their practices relate to constitutional norms on nondiscrimination and social rights. A proposed reform of the justice system includes enabling legislation to establish traditional/local courts, as provided for in section 110(3) of the Constitution. These will operate at the community level, exercise jurisdiction in matters of customary law, and decide minor criminal cases, thus filling the gap left by the unavailability of magistrates’ courts, particularly in the rural areas. It is proposed that these courts will have simplified procedures, use local languages, and address the procedural and linguistic barriers that currently limit the access of poor people to the courts. 99

4.5. Litigation resources

Barriers in the formal judiciary and the availability of alternative channels for social rights claims go a long way toward explaining the absence of social rights cases in Malawi's courts. But the alternative channels have their own limitations, and marginalized groups have lodged court cases in other contexts where the disincentives and obstacles are greater than in Malawi. 100 To understand poor litigants’ legal voice, or lack thereof, it is also necessary to take into account such resources as are available and that could enable them to overcome litigation barriers and turn grievances and claims into a mainstream legal process.

From elsewhere we know that a key factor is associative capacity , that is, the ability to join forces; link up with legal expertise; form associations with the ability to mobilize around social rights issues; generate resources; and sustain collective action. 101 Personal agency—the realm of personalities and leadership—is central to understanding why some marginal groups are able to articulate their concerns well enough to pave the way for a judicial process or inquiry and to sustain such. But, particularly in litigant-driven and formalistic legal systems like Malawi’s, it is crucial that there are professionals to assist in litigation efforts or to initiate litigation on their own, either as an ad hoc effort to assist in a concrete situation or as part of a long-term strategy to build jurisprudence. 102 Externally initiated cases bypass many of the barriers poor and marginalized people face and can be articulated with minimal input from those directly affected. But professional legal service organizations are an increasingly internationalized set of actors. Inspiration, legal strategies, and resources flow across borders, and many organizations and networks have long-term commitments to a specific cause or to the development of jurisprudence in a particular field. Where they are in the driver's seat, their ambitions may not necessarily converge fully with the interests of their clients. Cooperation between legal professionals and the people whose social rights are most at risk—the very poor, socially outcast, people in deep rural areas without a permanent home or functioning social structure—often proves difficult. However, where there is a successful collaboration it adds strength and concreteness to the claims, and a social momentum to the process though mobilization on the ground. 103

In Malawi, social rights advocacy groups and nongovernmental organizations (NGOs) that focus on development and social justice, such as the Malawi Economic Justice Network, the Civil Society Coalition for Quality Basic Education, and the Malawi Health Network, have not been oriented towards litigation. Unlike civil or political rights advocacy groups, they rarely have legal professionals on their decision-making boards or among their staff; their focus has been on social mobilization. 104 Moreover, access to legal aid is scarce for social rights cases. The public legal aid scheme barely manages to assist those who risk a death sentence for murder. 105 The Human Rights Commission occasionally provides legal assistance, 106 and nongovernmental organizations, such as the Civil Liberties Committee, the Center for Advice and Research and Education in Rights, the Women Lawyers Association, and the Malawi Law Society, provide some pro bono legal services, including representation in litigation, but these have mainly focused on criminal justice and civil and political rights. The proliferation of political cases in the courts, ranging from parties’ internal conflicts to election petitions and impeachment issues, may also crowd out social rights cases. 107 Quite apart from draining the courts’ capacity, high-profile political cases draw heavily on the scarce resources in Malawian legal community, which might otherwise have been engaged in pro-poor litigation. Geographic distance between the poor and their potential partners in litigation strategies is also a major constraint. Civil society organizations are predominantly urban-based, while most poor people live in rural areas, far from the groups with the relevant resources.

Potential partners are also limited by the underdeveloped nature of civil society in Malawi, which, besides the churches, consists chiefly of donor-funded nongovernmental organizations. That these are averse, generally, to radical social transformation is hardly surprising given their reliance on funding from Western governments and agencies that generally do not support fundamental restructuring of current free market–based economic relations. 108 The portion of civil society that is not part of the urban-based, donor-funded community of NGOs has limited channels and resources. The constraints that adversely affect the capacity of rural civil society organizations can, in part, be explained historically, because rural society was the economic realm most directly emasculated by colonial and postcolonial land and agrarian policies. 109

We see various factors combining to mute the legal voice of poor people in Malawi, preventing them from pursuing social transformation though the courts. Litigation requires resources that marginalized people in one of the world's poorest countries pretty much lack. Civil society has only a limited capacity to assist them, and institutions with a pro-poor agenda do not prioritize litigation in their pursuit of social rights. The fact that social mobilization is directed toward seemingly less effective institutions must be understood in light of Malawian courts’ lack of responsiveness and particularly the barriers against public interest litigation.

Legal systems vary in their willingness to accept public interest litigation and social rights cases as matters belonging within their jurisdiction. Differences are due both to formal criteria of standing and admissibility, to the formal status of the relevant rights, and to the judges’ understanding and application of the law. Figure 3 indicates how various influ ences affect the courts’ response to social rights claims by poor litigants.

Factors conditioning courts’ responsiveness to social rights

The response of courts to social rights claims is, partly, a function of how the claim is voiced, the merits of the case, the skill with which it is articulated, and the legal strategies employed. Again, access to quality legal services is central, and all the more so the less open a system is to social right claims. The legal system's responsiveness, in turn, depends on two sets of factors: the formal characteristics of the legal system and the nature of the judiciary. When discussing the judiciary in Malawi, it is important to remember that this is just a handful of people—the higher judiciary (the High Court and the Supreme Court of Appeal) comprises only twenty-four judges in all—and, as an institution, it has but a short history. Colonial rule, when expatriate judges staffed the judiciary, is just four decades past. In this context, personalities matter more than in large, institutionalized judiciaries. Still, it is meaningful to consider structural and cultural factors that shape judges’ mind-sets.

We have discussed how certain aspects of the law are relevant to whether or not prospective litigants decide to pursue litigation. In sum, the factors that affect the legal system's responsiveness to the social rights claims of poor people include: the status of social rights, rules of standing, legal procedure and evidence, and the legal basis for litigating collective claims and in the public interest. Provisions regulating the courts’ competence and jurisdiction also influence whether judges accept cases regarding the social rights of the poor as within their domain.

The Malawian judiciary has unusually broad constitutional latitude. It has the exclusive constitutional power to determine the scope of matters that are justiciable. 110 In interpreting and applying the law, judges are directed to take into account principles of national policy that are aimed at promoting gender equality, adequate nutrition and health care, the quality of rural life, the disabled, and the elderly, a sensible balance between creation and distribution of wealth, and good governance. 111 The judiciary is free to decide that a matter affecting marginalized or vulnerable groups is justiciable, and it is effectively empowered to be the ultimate arbiter in political disputes. Through judicial review it can demand responsiveness to the poor from the executive, which is responsible for initiating and executing policy. Jurisdiction is thus no obstacle to the courts’ responsiveness to poor people's social rights claims.

Section 15 of the Malawi Constitution is the primary provision governing locus standi in relation to the enforcement of human rights. It entitles “any person or group of persons with sufficient interest” in the protection and enforcement of rights under the Constitution to seek assistance of the courts to ensure the promotion, protection, and redress of grievance with respect to those rights. Section 46(2) provides that any person claiming that a fundamental right or freedom has been infringed or threatened is entitled to apply to a competent court for its enforcement or protection. Malawian courts have interpreted these provisions both in a restrictive manner and inclusively. The most liberal interpretation was in the 2003 case of Registered Trustees of PAC v. Attorney General and Others, 112 in which the High Court ruled that “sufficient interest” in section 15 should not be interpreted restrictively, particularly not in relation to the judicial review of decisions that affect human rights, allowing the PAC to litigate and also allowing the Human Rights Commission to bring its perspective to the attention of the court as amicus curiae. 113 A liberal interpretation of sufficient interest enables third parties, such as NGOs, to apply for judicial review on behalf of victims of human rights violations, the majority of whom are likely to have limited access to the courts due the barriers discussed earlier. 114 A liberal approach to procedural technicalities is also found in Longwe v. Attorney General. 115 The Court held that an application affecting a matter of great national importance, concerning individual freedoms and rights to political participation, should be decided on the basis of substance and not on a technicality.

In contrast, the Supreme Court of Appeal has taken a restrictive view on standing requirements. It has indicated disagreement with the 2003 PAC judgment discussed above, and in CILIC v. Attorney General 116 it held that the nongovernmental organization's interest in the matter was too remote since the only connection it could claim to the case was that it was a registered body established to promote, protect, and enforce human rights, democracy, and the rule of law. The Supreme Court adopted a similarly restrictive approach when holding that, although section 46(2) provides that “any person” can seek judicial review for an infringement of “a” (not “his or her”) human right, “this cannot mean that any person can complain about an infringement affecting another person, otherwise it would conflict with the [‘sufficient interest’] provisions of section 15(2) of the Constitution.” 117 It also found that a person must have “a legal right or substantial interest in the matter in which he seeks a declaration. . . ‘sufficient interest’ is one which is over and above the general interest.” 118 There is no provision regarding public interest litigation, and in a 1998 judgment, R v. Registrar General, ex. p. CILIC , 119 the High Court held that Malawian law does not provide for public interest litigation. All judicial action is subject to the (restrictive) rules of standing based on the requirement of sufficient interest. Interestingly, the High Court had indirectly accepted public interest litigation in some circumstances. In Kamuzu Banda and the Foundation for the Integrity of Creation, Justice and Peace, 120 the court said that if the former president had been “voiceless, defenseless and weak” the foundation could, in the public interest, have undertaken the case on his behalf. However, the court did not agree that Banda was voiceless and defenseless and found that to permit public interest litigation under the circumstances would encourage the creation of “a class of person popularly referred to as ‘a private Attorney General.’” This restrictive position on legal standing makes the courts unresponsive toward public interest litigation and class actions, thus discouraging the types of legal claims with the greatest potential for social transformation.

Flexibility in the application of legal formalities would enhance the courts’ responsiveness toward poor people's demands for enforcement of social rights, but it is not by itself sufficient. There must be a justiciable basis for the rights in the Constitution, legislation, or international conventions. While Malawian judges see that there are justiciable issues concerning evictions, employment, and education, socioeconomic rights are generally regarded as outside the judicial domain. 121 This runs counter to our reading of the Constitution, which, despite some ambiguity, provides a textual basis for transformative social rights jurisprudence, particularly when the social rights provisions are read in combination with antidiscrimination provisions and the courts’ obligation to take account of social rights in their interpretation. Again, judges’ interpretations, not the legal texts, limit their responsiveness.

To look at this comparatively, consider the importance of interpretation for the responsiveness of courts to poor people's social rights, as is vividly illustrated by Indian judges’ relaxation of standing rules and procedures and their inference of social rights from the right to life and dignity. 122 In contrast, the South African Constitutional Court, with a favorable textual basis, has limited the possibility for direct access and has adopted a narrow interpretation of the justiciablity of social rights, largely barring individual claims. 123 Judges in other African and Latin American judiciaries with relatively sound constitutional bases for social rights have, as in Malawi, interpreted the law restrictively, maintaining narrow criteria for standing, dismissing public interest litigation, and declining jurisdiction on social rights. 124

6.1. The nature of the judiciary

How judges interpret the law determines its impact on marginalized and vulnerable groups, but what shapes judicial interpretation? Scholars differ on whether rational self-interest, norms or personal background is most decisive for how judges choose to interpret the law. 125 The analytical framework outlined above points to three factors as particularly important for judicial interpretation and responsiveness in cases affecting poor people's social rights: the legal culture, the sensitization of judges, and the composition of the bench. How legal norms are interpreted in a particular case is linked to the individual judge's personal, ideological, and professional values, which combine with the legal culture to shape his or her perception of the judges’ own role, the understanding of what is the appropriate way to deal with social rights, the relationship between law and politics, and to what extent social rights are within the proper domain of the courts. How firmly judicial independence is embedded in the legal culture is also crucial. There are many reasons why “the haves come out ahead,” 126 but a culture tolerating political pressure and other external influences on judicial decisions opens the system to elite capture, further disadvantaging the poor and politically marginal litigants.

Malawi's legal culture is marked by its history as part of the British Empire and its legal tradition. The many judges and legal scholars receiving some portion of their education in Britain helps to keep the ties alive. (There are also some who are educated in the U.S., which may account for some of the divergence in constitutional interpretation discussed below.) Formalities are keenly adhered to, from the pomp and circumstance of wigs and gowns, to legal procedure. British and Commonwealth case law is frequently cited. The interpretative approach taken by Malawian judges, with some exceptions, follows the principle of parliamentary sovereignty and seeks to give effect to the intention of the legislature rather than constitutional norms. As expressed by the judge in HRC v. Attorney General: “if the language used by the law giver is ignored in favor of a general resort to ‘values’ the result is not interpretation but divination.” 127 In Malawi, this approach diminishes the importance of the Constitution's pro-poor, egalitarian norms.

The responsiveness of judges to social rights claims depends on how they understand the relationship between law and politics and the boundaries of their own role. The Constitution is ambiguous. Sections 13 and 14 require the judiciary to take into account the principles of national policy in its interpretation of the law, suggesting that judges should not delink law from politics. On the other hand, section 9 seems to require a stricter dichotomization, providing that “the judiciary shall have the responsibility of interpreting, protecting and enforcing this Constitution and all laws in accordance with this Constitution in an independent manner with regard only to legally relevant facts and the prescriptions of law ” (emphasis added). Among Malawian judges, some emphasize the importance of separation of powers and are reluctant to take on cases perceived to fall within the political domain; others welcome opportunities for the judiciary to prove its social and political relevance. 128 Sometimes political considerations form part of their legal reasoning, as in MCP v. Attorney General , 129 where the Supreme Court dismissed Malawi Congress Party's argument that while it boycotted the parliamentary proceedings Parliament lacked a quorum and could not pass legislation. The court held that to legitimize a paralysis of the legislative process would undermine democracy. 130 The judge also took social realities into account in Kapito v. David Whitehead and Sons, dismissing as not credible the factory manager's assurance that the conditions on a weaving factory floor were not injurious to health. Knowing “how difficult it is to find a job these days,” the judge reasoned that workers would not have stopped working without reason. 131

More often the sociopolitical content of litigation is disregarded, even when it is obvious, as in cases where the issue has been discrimination in employment and education against people from the northern region. 132 That these cases are decided on procedural or narrow legal grounds may stem from a fear of confirming perceptions of the judiciary as dominated by northerners; however, it also reflects a wish to preserve a legal legitimacy based on technical professionalism, which militates against taking on social rights cases challenging the political-legal distinction.

Judges’ interpretation of the law, as it applies to poor and marginalized people's social rights, is affected by their sensitivity, individually and collectively, to the poor's concerns and conditions. Sensitivity may be built up through training and experience and enhanced through advocacy and public discourse, but it is most profoundly reflected in the composition of the bench. Who the judges are and where they come from, socially, culturally, ideologically, and in terms of their education, shapes their perspective, professional qualities, integrity, and commitment. 133

Institutionally, the composition of the bench is a function of the system and the criteria for appointments. Inclusive and transparent appointment processes generally create more diverse and socially sensitive courts. But formal procedures do not necessarily change the responsiveness of courts to the concerns of marginalized groups—and more-responsive courts have come about without changes in the appointment procedures.

In Malawi, the process is as follows. The Malawian president appoints High Court judges and justices of appeal from a list nominated by the Judicial Service Commission. The president also appoints the chief justice, subject to parliamentary approval. Traditionally, a seniority principle is followed and the current chief justice was unanimously approved. The chief justice appoints the lower judiciary, also nominated by the Judicial Service Commission. 134 The commission is composed of the chief justice, the chairman of the Civil Service Commission, a judge or justice of appeal, a magistrate, and a practicing lawyer, all appointed by the president. 135 The executive's role in judicial appointments and its influence over the nominating body is a concern, particularly since the appointment process lacks transparency. Judicial positions are publicly advertised, but deliberations are secret, as is the list of judicial nominees that the president chooses from. When the system was adopted, it was seen as exposing judges to political influence; critics wanted to maintain a depoliticized system where judges are appointed by their peers. 136 From the perspective of pro-poor jurisprudence, the significance of judicial independence vis-à-vis the executive depends on the government's ideological orientation. But even where the government has a pro-poor agenda, it is important that the judiciary be independent enough to hold the government accountable for corrupt and self-serving practices by the elite.

From the perspective of responsiveness to poor people's social rights claims, the judges’ social background and training is arguably more important than political independence. Candidates for judicial office in Malawi must have a law degree and ten years of practice; judges come from the magistracy, the civil service, as well as private practice. The sometimes more progressive rulings in the lower courts, as compared with the Supreme Court, may be ascribed, in part, to differences in education. While sitting judges receive training on human rights and constitutional law, most underwent their basic legal training when Malawi was a one-party dictatorship and university teaching generally avoided subjects, such as human rights, that could be interpreted as critical of the government. In contrast, most professional magistrates underwent their training after the political transition that, made Malawi a more open and democratic state. The curriculum has been modernized to include human rights and liberal democratic constitutional law, but it focuses on governance issues rather than social rights, equality jurisprudence, and other subjects of particular importance to marginalized groups and to the development of pro-poor jurisprudence.

In Malawi, the Constitution does not require the composition of the judiciary to be representative of the population, unlike in South Africa where “the need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial appointments are made.” 137 Members of the Malawian Judicial Service Commission indicate that they nominate on the basis of merit, personal integrity, and experience, with some concern for gender balance. 138 Still, gender imbalances are stark. Out of twenty-four justices of the High Court and Supreme Court of Appeal, only four are women. And in 2003, there were 15 women among the country's 153 magistrates. With gender discrimination pervading the norms and practices that uphold poverty patterns in Malawi, this is a serious shortcoming and helps to explain why the constitutional norms and principles aiming at gender equality fail to shape jurisprudence. There is a perception that northerners dominate the judiciary. However, the commissioners deny taking account of regional origin when judges are appointed, and the current composition of the judiciary does not seem to reflect a regional bias. 139

Malawian judges are part of the elite by virtue of their position, but not necessarily in their background. The current generation of judges—and their contemporaries in the political elite—often came through the public school system or religious schools and received most of their professional training within the country. 140 But conditions for social mobility are rapidly changing, which is likely to influence the social composition of the bench. With standards declining in Malawi's public education system, 141 those who can afford it send their children to private schools and to tertiary education abroad, and the elite increasingly lacks a personal stake in the public school system. These developments increase the social distance between the poor and the elite, including the judiciary, and, therefore, the sensitivity of the elite to poor people's concerns.

At a personal level, Malawian judges relate to the plight of poor people. But their professional identity and judicial mind-set render their interpretation of the law unresponsive to social rights claims and are an obstacle to social transformation.

The most immediate explanation for the lack of pro-poor social rights jurisprudence in Malawi is lack of voice—the courts do not face a demand, and, since the legal system is litigation driven, judges do not investigate cases on their own initiative. In a context where the need for social transformation is striking, and the legal basis for social rights litigation reasonably promising, the absence of legal voice needs to be explained. We have shown how a number of factors combine to discourage poor and marginalized people from voicing social rights claims, including lack of awareness, practical and psychological barriers, and the availability of alternative institutions. But the two major explanatory factors seem to be, first, the lack of litigation support and, second, the legal system's barriers against public interest litigation. This, our analysis reveals, is due mainly to a legal culture that is predominantly formalistic, patriarchal, and conservative. Concerned to maintain a specifically legal legitimacy, most judges are reluctant to see the courts as an arena for social transformation; as a consequence, their interpretation of legal formalities and of the law itself does not actualize its pro-poor potential. The absence of women on the bench contributes to the discrepancy between the Constitution's focus on eliminating gender inequality and the existing jurisprudence's tendency to reinforce discriminatory practices.

More-accessible legal assistance from legal service organizations, or from the courts themselves, and relaxed criteria for legal standing are likely to stimulate social rights claims. Such reforms have had effects elsewhere 142 and, given the conditions in Malawi, there is reason to believe that they would inspire a demand for pro-poor jurisprudence. But how desirable is this? Should social rights litigation by or on behalf of poor and marginalized people be encouraged in the circumstances?

There are different aspects to this question. One is realism. Strong voice and more responsive courts will not necessarily produce pro-poor results. If we return to figure 1 , we see how the voicing of claims and their acceptance into the legal system is just the beginning. The impact of litigation depends both on what the courts do with the claims—whether and how they give effect to social rights—and on how judgments are received and implemented.

Malawian judges can make a wide array of orders to enforce social rights. Section 16 of the Statute Law Act authorizes the High Court to issue a variety of orders, including those that merely require the state to respect a right in the negative sense of noninterference; oblige the state to protect rights against encroachment by others; require the state to facilitate the enjoyment of certain rights through development of specific policies; or issue concrete orders for state agencies to discharge duties correlative to individual claimants’ rights. 143 However, a prohibition on injunctions against the government limits the potential for promoting social rights through the courts. 144 The High Court has upheld the prohibition in some cases 145 but, in others, found it to violate section 41(3) of the Constitution, granting the right to an effective legal remedy. 146 This inconsistency reflects the structural problems militating against the development of pro-poor social rights jurisprudence in Malawi. In a context where judgments are not systematically reported or circulated, precedent has limited effect, making any incremental development of jurisprudence difficult. 147 “Inadequate provision of fundamental legal resources, such as books, case reports, statute books and gazettes, greatly constrains the performance of the judiciary in its administration of justice.” 148 Judges have no research assistance, and with modest remuneration compared with what good lawyers can earn, it is a challenge to recruit the best legal minds to the bench. These factors combine to render creative social rights jurisprudence unlikely.

Litigation can, to some extent, compensate for the lack of resources—material, jurisprudential, and intellectual—within the judiciary. Where the judiciary is weak, the skill with which a claim is argued is crucial, as illustrated by two cases discussed earlier. The evicted defendants in the Mchima Tea case (claiming ownership to the land based on prior customary title) had no legal representation and did not manage to bring to the court's attention legal material that could have aided their case. In contrast, the tenants who prevailed in their claim against the Malawi Housing Corporation were assisted by the Consumers Association of Malawi. Relaxed standing rules and better litigation resources for marginalized groups and their organizations could aid the development of jurisprudence. Note, too, that in making it easier for the poor to voice social rights claims there may also be unintended effects. Where access barriers are low, the poorest risk being crowded out by the not-so-poor, who are in a better position to litigate. 149

There is no reason to stimulate legal mobilization among poor people unless there is a reasonable chance of effecting actual changes on the ground. This requires more than pro-poor judgments; rulings must be accepted by the relevant institutions, complied with, and implemented in law, policy, and practice. This would not necessarily happen in Malawi. The Malawi Housing Corporation judgment discussed earlier did not prevent the corporation from continuing to raise rents, 150 and the International Bar Association, surveying the legal situation in the country, found evidence of government disregard for court orders considered to be politically unpopular. 151 Insufficient resources also hamper compliance with human rights obligations, for example, in providing prisoners with adequate nutrition and medical treatment or providing legal aid.

Where individuals or small groups of people are discriminated against or denied their rights, including social rights, traditional legal mechanisms can go a long way in rectifying the problems. 152 But while the courts may have suitable remedies to address pockets of poverty, other answers are needed where the pockets are larger than the trousers, as in Malawi, where the majority of the population is poor. Can social rights litigation be part of the answer in cases where individual redress seems like the arbitrary lifting of the burdens of a few while still not addressing the underlying structures of socioeconomic marginalization?

Even in such contexts, litigation-centered strategies can be of value. Sometimes the law, as interpreted by the courts, contributes to marginalization and the production of poverty by upholding discriminatory social practices. Where the application of the law is the problem or a part of the problem, litigation-based strategies serve an important purpose. Marginalization of women is a case in point. With a close link between gender discrimination and poverty, and a clear constitutional mandate to eliminate discrimination against women, quality litigation can help change prevailing patriarchal and discriminatory jurisprudence.

If the focus is on policy changes rather than individual redress, social rights litigation can keep the government closer to the transformative priorities laid out in the Constitution, much as the South African Constitutional Court did in the famous Grootboom case on the right to housing, 153 where it ordered the state to devise a comprehensive and workable plan to meet the needs of people in desperate need. Even without going into overall budgetary allocations, litigation addressing expenditures within sectors such as health or housing—and the share spent on services for the elite compared with services for poor people—can force the government to account for its priorities in light of its constitutional obligation to prioritize development with special regard for the most vulnerable. Combined with advocacy and other forms of mobilization, such litigation can stimulate public discourse and create political pressure for changes in social policy. The research and the systematization of facts required by the legal process are useful for advocacy purposes, and even where litigation is not successful, in terms of pro-poor judgments, court cases may function nonetheless as focal points for mobilization.

On differences between constitutions that reflect the status quo and transformative constitutions, see Geoff Budlender, Transforming the Judiciary: The Politics of the Judiciary in a Democratic South Africa , 122 SA LJ. 715, 715–716 (2005); Karl Klare, Legal Culture and Transformative Constitutionalism , 14 SAJHR 146 (1998).

Republic of Malawi (Constitution) Act, No. 20 of 1994, hereinafter Malawi Const. or the Constitution.

Edge Kanyongolo, Courts, Elections and Democracy, in The Power of the Vote: Malawi's 2004 Parliamentary and Presidential Elections (Martin Ott et al. eds., Kachere Series 2005); Siri Gloppen & Fidelis Edge Kanyongolo, The Role of the Judiciary in the 2004 General Elections in Malawi, 12 E. Afr. J. Peace & Hum. Rts. 279 (2006).

On social transformation and transformative jurisprudence, see Siri Gloppen, Courts and Social Transformation: An Analytical Framework, in Courts and Social Transformation in New Democracies: An Institutional Voice for the Poor? 35, 37–39 (Roberto Gargarella et al. eds., Ashgate 2006).

The Malawi Supreme Court of Appeal (MSCA) was established by Malawi Const. §§ 104 & 105.

The High Court of Malawi (MHC) was established by Malawi Const. § 108.

Republic of Malawi Courts (Amendment) Act, No. 2 of 2004, § 9(2).

Malawi Const. § 108(2).

Malawi Const. § 110.

Republic of Malawi, Integrated Household Survey 139 (2005), available at http://www.nso.malawi.net/data_on_line/economics/ihs/IHS2/IHS2_Report.pdf .

Danwood Chirwa, A Full Loaf is Better Than Half: The Constitutional Protection of Economic, Social and Cultural Rights in Malawi, 49 J. Afr. L. 207, 214 (2005).

Amartya Sen, Democracy as Freedom 87 (Oxford Univ. Press 1999); United Nations Development Programme (UNDP), Human Development Report 73 (2000), available at http://hdr.undp.org/reports/global/2000/en .

Republic of Malawi, Malawi Poverty Reduction Strategy Paper (2002), available at http://www.imf.org/External/NP/prsp/2002/mwi/01/index.htm . See also Stanley W. Khaila et al., Consultations with the Poor: Country Synthesis Report Malawi 29 (World Bank 1999), available at http://www1.worldbank.org/prem/poverty/voices/reports/national/malawi.pdf .

Integrated Household Survey , supra note 10, at 73.

Id. at 139.

UNDP, Human Development Report (2006), available at http://hdr.undp.org/reports/global/2006/en . See also UNDP, Human Development Indicators: Country Fact Sheet Malawi (2006) , at http://hdr.undp.org/hdr2006/statistics/countries/country_fact_sheets/cty_fs_MWI.html . The human development index provides a composite measure of life expectancy, adult literacy and school enrolment, and income (purchasing power parity, PPP, income). The Human Poverty Index for developing countries uses the same dimensions but focuses on the proportion of people below a threshold level.

Malawi Poverty Reduction, supra note 13, at 5.

World Development Report 139 (World Bank 2001); François Delor & Michel Hubert, Revisiting the Concept of ‘Vulnerability’, 50 Soc. Sci. & Med. 1557 (2000).

Stigmatization occurs when an individual or social group is negatively evaluated and perceived to possess a characteristic constituting a basis for avoiding or excluding them from certain types of social interaction. Such exclusion produces and reproduces marginalization, which in turn increases vulnerability. Robert Kurzban & Mark Leary, Evolutionary Origins of Stigmatization: The Functions of Social Exclusion , 127 Psychol. Bull. 187 (2001).

Identity is an indicator of vulnerability in the legal political order and a basis for legal and political entitlement, which, in turn, determines marginalization and political weakness. See Harry Englund, Introduction: Recognising Identities, Imagining Alternatives , in Rights and the Politics of Recognition in Africa (Harry Englund & Francis Nyamjoh eds., Zed Books 2004).

Integrated Household Survey, supra note 10, at 19.

Olivia Kumwenda, 2005: Year of Muluzi, Bingu Conflict, Nation Malawi , Dec. 30 2005, available at http://www.nationmalawi.com/print.asp?articleID=1439 ; Hery Cilobwe, 2005: The Year of Tit for Tat , Nation Malawi , Dec. 30, 2005, available at http://www.nationmalawi.com/print.asp?articleID=14394 ; George Ntonya, Malawi Needs Responsible Politicians—Envoy, Nation Malawi , Jan. 3, 2006, available at http://www.nationmalawi.com/articles.asp?articleID=14433 .

Eric Pelser et al., Crimes of Need: Results of the Malawi National Crime Victimisation Survey , 17–25 (Malawi National Statistical Office 2004).

Malawi: Govt Threatens to Evict Informal Settlers , Integrated Regional Information Networks, Aug. 15, 2005, at http://www.irinnews.org/report.asp?ReportID=48549&SelectRegion=Southern_Africa .

Govt Puts Foot Down on Vendors, Nation Malawi , Apr. 18, 2006, available at http://www.nationmalawi.com/print.asp?articleID=16248 .

Malawi Const. § 12.

Malawi Const. § 13.

Socio-Economic Rights in South Africa 16 ( Sandra Liebenberg & Karisha Pillay eds., Community Law Centre, Univ. of Western Cape 2000).

§§25, 30 & 44, respectively. Prisoners have the right “to be detained under conditions consistent with human dignity, which shall include at least the provision of reading and writing materials, adequate nutrition and medical treatment at the expense of the State.” § 42(1)(b).

The right reflects developing countries’ aspirations of social justice as embodied in the African [Banjul] Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982) (adopted June 27, 1981), and the United Nations Declaration on the Right to Development, G.A. 41/128 (Dec. 4, 1986). Belief in the right to development as a vehicle for social change has faded as repeated attempts to turn the vaguely worded declaration into a more binding treaty text failed due to political resistance from Western countries and the U.S. in particular. On the politics of the right to development, see Stephen Marks, The Human Right to Development: Between Rhetoric and Reality, 17 Harv. Hum. Rts. J. 137 (2004).

Malawi Const. §30.

African Charter, art. 22, supra note 30; cf. Malawi Const. §30, cited in full above.

See Chirwa, supra note 11, at 207.

Malawi Const. §13. Similar arrangements are found in the constitutions of Namibia (1990: ch. XI, principles of state policy; & art. 20, right to education), Ghana (1992: ch. 6, directive principles of state policy; art. 24, labor rights; art. 25: right to education; arts. 27–29, rights of women, children and disabled persons); and Uganda (1995, pmbl: National Objectives and Directive Principles of State Policy; art. 30, right to education; arts. 32–35, affirmative action in favor of marginalized groups and special protection of women, children, & people with disabilities; art. 39, right to a clean and healthy environment; & art. 40, economic rights), Sierra Leone (1991: ch. II, Fundamental Principles of State Policy), & Nigeria (1999: ch, II: Fundamental Objectives and Directive Principles of State Policy) recognize social rights only as directive principles. Supra note 11, at 207.

Malawi Const. § 14.

For a discussion, see Chirwa, supra note 11.

Supra note 30. Ratified by Malawi Nov. 17, v. 1989.

International Covenant on Economic, Social and Cultural Rights, G.A. res. 2200A (XXI), 21 U.N.GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3. Ratified by Malawi Dec. 22, 1993.

Convention on the Elimination of All Forms of Discrimination against Women, G.A. res. 34/180, 34 U.N. GAOR Supp. (No. 46) at 193, U.N. Doc. A/34/46 (accession by Malawi Mar. 12, 1987).

Malawi Const. § 211 provides that: “(1) Any international agreement ratified by an Act of Parliament shall form part of the law of the Republic if so provided for in the Act of Parliament ratifying the agreement. (2) International agreements entered into before the commencement of this Constitution and binding on the Republic shall form part of the law of the Republic, unless Parliament subsequently provides otherwise or the agreement otherwise lapses. (3) Customary international law, unless inconsistent with this Constitution or an Act of Parliament, shall have continued application.”

On the relationship between international law and Malawi's domestic law, see Thomas Trier Hansen, Implementation of International Human Rights Standards through the National Courts in Malawi, 46 J. Afr. L. 31 (2002).

Malawi Const. § 11(2), stating: “In interpreting the provisions of this Constitution a court of law shall. . . (c) where applicable, have regard to current norms of public international law and comparable foreign case law.”

Criminal Appeal No. 9 of 1992 (MSCA).

Michael Anderson, Access to Justice and Legal Process: Making Legal Institutions Responsive to Poor People in LDCs (Institute of Development Studies, Working Paper No. 178, 2003).

Malawi Const . § 22.

Anderson, supra note 44.

Ministry of Lands, Malawi National Land Policy 6 (2002), available at http://www.malawi.gov.mw/publications/landpol.htm .

Malawi Const. § 28.

Between 1967 and 1994 more than one million hectares of customary land was lost to private and public land. Supra note 47.

See, e.g., A.T.B. Mbalanje, Land Law and Land Policy in Malawi , in Land Policy and Agriculture in Eastern and Southern Africa (J.W. Arntzen et al. eds., United Nations Univ. 1986); Jean-Philippe Platteau, The Evolutionary Theory of Land Rights as Applied to Sub-Saharan Africa: A Critical Assessment , in 27 Dev. & Change 29 (1996); Klaus Deininger , L and Policies for Growth and Poverty Reduction (Oxford Univ. Press 2003).

Malawi Const. § 29.

Malawi Const. § 31.

Malawi Const. § 27.

Malawi Const. § 23.

Malawi Const. §§ 41, 43 & 26, respectively.

Civil Cause 1665 of 1994 (HCM).

175 CLR 1 (1992).

187 CLR 1 (1997).

Brennan J. in Mabo , supra note 58. On application of this principle to establish the rights of a dispossessed ethnic group in Botswana, see Clement Ng’ong’ola, Land Rights for Marginalized Ethnic Groups in Botswana, with Special Reference to the Basarwa, 41 J. Afr. L. 1 (1997).

Fidelis Edge Kanyongolo, The Rhetoric of Human Rights in Malawi: Individualization and Judicialization, in Rights and the Politics of Recognition in Africa, supra note 20 (2004).

Civil Cause No. 1839(a) of 1997 (MHC).

Chirwa, supra note 11, at 222.

It is difficult to determine the genesis of the provision since the record of the proceedings of the National Consultative Council, the multiparty grouping that produced the first draft of the Constitution in 1994, has never been made public. In addition, the national constitutional conference held in February 1995, which brought together a cross section of Malawian society to debate the Constitution, endorsed the provision without any substantive comment. Nevertheless, the origins of the provision can probably be traced to case law going back to the 1960s, in which courts laid down the principle that a long-term relationship between a man and a woman can create rights and duties akin to those of married people notwithstanding that the relationship has not been formalized. See, for example, the 1964 cases of Nelson v. Magombo 1964–1966 ALR (Malawi Series) 134 and Ali v. Mhango , Civil Appeal No. 15 (T.C.) of 1970, discussed in 16 J. Afr. L. 176 (1972). Four percent of women and one percent of men over the age of fifteen live in such common-law marriages according to the National Statistical Office, 2004 Malawi Demographic and Health Survey (2005) 26, available at http://www.measuredhs.com/pubs/pdf/FR175/03Chapter03.pdf .

In Rashid Hussein James v. Republic , High Court Criminal Case No. 12 of 1999 (unreported), the High Court held that a woman's refusal to engage in sex should not always be taken at face value, while Supreme Court Justice Tambala, speaking at a Women and Law in Southern Africa (WILSA) conference, argued against criminalizing marital rape, stating that “there cannot be rape between spouses while their marriage subsists.” Africanews, June 2001, at http://web.peacelink.it/afrinews/63_issue/p7.html .

Malawi Law Commission, Constitutional Review Consultation Paper 16, available at http://www.lawcom.mw/docs/consultationpaper.pdf .

In its public consultations during the process of constitutional review in 2005, the Malawi Law Commission found such opposition, particularly among traditional leaders and youth. (Malawi Law Commission, supra note 65, at 17). This view was repeated in presentations made at a national conference on the Constitution held in April 2006. Summary of the Proceedings of the First National Conference on the Review of the Constitution 7 (2006), at http://www.lawcom.mw/docs/summproc.pdf .

See Malawi Law Commission, Report of the Law Commission on the Review of the Laws of Marriage and Divorce 23 (Dec. 30, 2005).

MHC Loses Case on Rents , 29 Malawi News Online , May 7, 1997, available at http://www.africa.upenn.edu/Newsletters/mno29.html .

Figures are from Siri Gloppen, Public Interest Litigation, Social Rights and Public Policy, World Bank Conference: New Frontiers of Social Policy (Dec. 12-15, 2005), available at http://siteresources.worldbank.org/INTRANETSOCIALDEVELOPMENT/Resources/Gloppen.rev.3.pdf . For an elaborated version of the framework, see Gloppen, Courts and Social Transformation , supra note 4.

Sally Falk Moore , Law as Process: An Anthropological Approach (Routledge & Kegan Paul, 1978).

For a schema of the stages in the voicing of claims, see Anderson, supra note 44, at 17; Willam Felstiner et al., The Emergence and Transformation of Disputes: Naming, Blaming, Claiming , 15 Law & Soc’y Rev . 631 (1981).

Wilfried Scharf et al., Access to Justice for the Poor of Malawi?, 15 (Department for International Development 2002), available at http://www.grc-exchange.org/docs/SSAJ99.pdf .

Malawi Judiciary Programme 2003/11-2008/1, 10 (2003).

List of fees posted at the Malawi Judiciary website, at http://www.judiciary.mw/Court_fees.htm , (last accessed Jan. 17, 2006).

Scharf, supra note 73, at 15.

Malawi Judiciary, List of Courts in Intergraded [sic] Judiciary , at http://www.judiciary.mw/Courts_list.htm , (last accessed Jan. 17, 2006).

Statute Law (Miscellaneous Provisions) Act, § 16; Order 53 of the Rules of the Supreme Court.

Courts (Amendment) Act, supra note 7, § 9(2).

Malawi Const. § 30(1).

Malawi Const. § 31(2).

On experiences of simplified access to the Indian Supreme Court, see Upendra Baxi, Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India, 1985 Third World Legal Stud. 107. For Costa Rica's experience with court-aided investigation of cases, see Bruce M Wilson, Claiming Individual Rights through a Constitutional Court: The Example of Gays in Costa Rica , 5 Int'l J. Const. L. (I•CON) 242 (2007) (in this issue).

In NDA v. Electoral Commission, MBC and TVM, Constitutional Case No. 3 of 2004 (MHC), publicized media monitoring data from the Electoral Commission, submitted as evidence of bias in election coverage, was thrown out as hearsay for not being appropriately presented. The advocate was one of Malawi's most experienced, who months later became the Attorney General.

See Klaus Decker et al., Law or Justice: Building Equitable Legal Institutions, World Development Report 2006 (World Bank, Working Paper 2005).

For the poverty–lawlessness dynamic, see Anderson, supra note 44.

On elite capture, see Decker et al., supra note 86.

For the relative importance of traditional legal institutions, see Leila Chirayath et al., Customary Law and Policy Reform: Engaging with the Plurality of Justice Systems, World Development Report 2006 (World Bank, Working Paper 2005).

Pelser et al. supra note 23, at 72; Heiko Meinhardt & Nandini Patel , Malawi's Process of Democratic Transition 43 (Konrad Adenauer Stiftung 2003).

See, e.g., Grace Tikambenji Malera, The Socio-Legal Status of Malawian Women in Politics: Opportunities and Challenges (Danish Institute for Human Rights 2005); and the report of the European Union Election Observation Mission to Malawi (2004), at http://ec.europa.eu/comm/external_relations/human_rights/eu_election_ass_observ/malawi/prelim_stat_04.pdf .

For a sample assessment of recent trends since 2000, see Amnesty International, Report 2003: Malawi (2003), at http://web.amnesty.org/report2003/mwi-summary-eng ; Centre for Human Rights and Rehabilitation, Malawi Human Rights Report 2003-2004 (2005), at http://www.chrr.org.mw/downloads/malawi_human_rights_report_2003_04.doc ; and United States Department of State, Country Report on Human Rights Practices (2005): Malawi (2005), at http://www.state.gov/g/drl/rls/hrrpt/2005/61579.htm .

128 Trade Union Members v. NSCM Milling Division, No. 8 of 1999 (IRC), concerns union leaders who were dismissed after organizing a strike. Mhango v. Attorney General, Civil Case No. 980 of 1998 (MHC), concerns a union leader who mediated in a trade dispute and was attacked by police.

Media Institute of Southern Africa, So, This is Democracy?: Report on the State of Media Freedom and Freedom of Expression in Southern Africa 62 (MISA Windhoek 2005), available at http://www.misa.org/sothisisdemocracy.html .

Malawi Const . § 126.

The ombudsman found that a plaintiff had been unlawfully terminated. Two years later, the employer had not complied with the orders. The plaintiff applied to the High Court to have it enforce the ombudsman's determination, but the court held that “once a person has opted to bring the matter to the office of the Ombudsman, the case can only come to the High Court for purposes of judicial review [and not direct enforcement].” Munthali v. Malawi Institute of Education, Civil Case No. 84 of 2003 (MHC).

Malawi Const . § 129; Human Rights Commission Act, No. 27 of 1998.

Malawi Human Rights Commission, Annual Report 2004 , 9-11 (2005), available at http://www.malawihumanrightscommission.org/docs/2004_MHRC_AnnualReport_.pdf .

See Malawi Law Commission, Report on the Workshop on the Review of the Traditional Courts Act Chapter 3:03 of the Laws of Malawi (2004).

See Charles Epp, The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective ( Univ. Chicago Press 1998); Courts and Social Transformation in New Democracies, supra note 4.

Epp, supra note 100 ; Mark Haywood, Shaping, Making and Breaking the Law in the Campaign for a National HIV/AIDS Treatment Plan , in Democratising Development: The Politics of Socio-Economic Rights in Africa (Peris Jones & Kristian Stokke eds., Brill Academic 2005).

Cause Lawyering and the State in a Global Era (Austin Sarat & Stuart Scheingold eds., Oxford Univ. Press 2001).

Litigating Economic, Social and Cultural Rights: Achievements, Challenges and Strategies (Centre on Housing Rights and Evictions 2003); Haywood, supra note 101; Cause Lawyering , supra note 102.

Typically, Malawi Health Equity Network's campaign to improve the quality of health care focused on health rights though essay competitions; public lectures; media campaigns; training; research—but not litigation. Adamson Muulan Will Health Rights Solve Malawi's Health Problems , 46 Croat Med. J. 46, 853, 853 (2005).

Legal Aid Act, ch. 4:01 (1964) mandates the government to provide legal representation to civil litigants and criminal defendants. In September 2005, the department had ten lawyers, and insufficient funds to pay lawyers in private practice. Telephone interview with Reyneck Matemba, chief legal aid advocate, Ministry of Justice and Constitutional Affairs (Jan. 31, 2006). With few experienced lawyers, services regularly violate basic requirements for the right to legal representation—to have a lawyer with “experience and competence commensurate with the nature of the offence.” Basic Principles on the Role of Lawyers , art. 6, 8th United Nations Congress on the Prevention of Crime and the Treatment of Offenders, U.N. Doc. A/CONF.144/28/Rev.1 at 118 (Aug. 27–Sep. 7, 1990), available at http://www.unhchr.ch/html/menu3/b/h_comp44.htm .

In HRC v. Attorney General, 200 Miscellaneous Cause 1119 (MHC), the Human Rights Commission represented civil servants complaining of being discriminated against in a governmental housing scheme.

Gloppen & Kanyongolo, supra note 3.

Fidelis Edge Kanyongolo, Land Occupations in Malawi: Challenging the Neo-Liberal Legal Order, in Reclaiming the Land: The Resurgence of Rural Movements in Africa, Asia and Latin America 133 (Sam Moyo & Paris Yeros eds., Zed Books 2005).

John Minnis, Prospects and Problems of Civil Society in Malawi, in Democratisation in Malawi: A Stocktaking 12 ( Kings Phiri & Kenneth Ross eds., Kachere 1998).

Malawi Const. § 103(2) reads: “The judiciary shall have jurisdiction over all issues of judicial nature and shall have exclusive authority to decide whether an issue is within its competence.”

PAC v. Attorney General, Civil Cause No. 1861 of 2003 (MHC). The case concerned review of a parliamentary decision to pass a constitutional amendment violating human rights.

An amicus , or “friend of the court,” is not party to the case but is allowed to bring relevant perspectives to the court's attention.

Kanyongolo, Courts, Elections, supra note 3.

Miscellaneous Civil Application No. 11 of 1993, 16 (MLR) 1, 256, 261.

Civil Appeal No. 12 of 1999 (MSCA).

Attorney General v. MCP and Others, Civil Appeal No. 22 of 1996 (MSCA) 39.

President & Another v. Kachere & Others , Civil Appeal No. 20 of 1995 (MSCA) 10.

Civil Cause No. 55 of 1998 (MHC).

Miscellaneous Application No. 89 of 1994 (MHC).

Interviews with eight judges of the High Court and the Supreme Court, in Blantyre and Lilongwe (Feb. and July 2004).

See Courts and Social Transformation in New Democracies, supra note 4.

Jackie Dugard, “The Court of Last Instance?”: Analyzing Direct Access to South Africa's Constitutional Court by the Poor , paper presented to the Universidad Diego Portales Workshop on “Courts and the Marginalized” (Dec. 1–2, 2005); Siri Gloppen, Social Rights Litigation as Transformation: South African Perspectives , in Democratising Development, supra note 101.

The literature on judicial decision making focuses mainly on when judges challenge political authorities, rather than their responsiveness to marginalized groups. Most attention is on U.S. courts, but efforts are also made to investigate judicial behavior in developing and transitional countries. On Malawi, see Peter von Doepp, The Problem of Judicial Control in Africa's Neopatrimonial Democracies: Malawi and Zambia, 120 Pol. Sci. Q. 275 (2005).

Marc Galanter, Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal Change, 9 Law & Soc’y Rev. 95 (1974); In Litigation: Do the “Haves” Still Come Out Ahead, (Herbert Kritzer & Susan Silbey eds., Stanford Univ. Press 2003).

Miscellaneous Cause No. 1119 of 2000 (MHC). See also Malawi Law Society v. Banda 12 MLR 29 (year); R v. Kunyambo 1 ALR (Malawi Series) 74 (year).

Interviews with judges of the High Court and Supreme Court of Appeal, supra note 121.

No. 2074 of 1995 (MSCA).

Other examples are Gondwe v. Attorney General, Civil Cause No. 261 of 1993 (MHC); Waka v. Attorney General , Civil Cause No. 1855 of 1993 (MHC); and Ella Banda v. Attorney General, Civil Cause No. 1727 of 1993 (MHC).

16(2) MLR 541, 543 (year).

In Jere v. Malawi National Examinations Board, Civil Appeal No. 137 of 1997 (MSCA), senior officers from the northern region complained of unfair dismissal. Both the High Court and the Supreme Court found the dismissals unjustified, but neither mentioned the underlying politics of regionalism, analyzing the issues on purely legal-technical grounds. Mhango v. University Council of Malawi, Miscellaneous Civil Cause No. 93 of 1993 (MHC), challenged a university affirmative action programme that, in effect, disadvantaged students from the northern region. Neither the plaintiffs’ lawyers nor the High Court analyzed the issues in terms of the right to education or the politics of regional polarization in education, focusing exclusively on technical arguments; similarly in Nasawa v. Attorney General , Miscellaneous Application No. 153 of 1993 (MHC). In Valimahomed v. Designated Schools Board Civil Cause No. 211 of 1994 (MHC), and Koreia v. Designated Schools Board, Civil Cause No. 1908 of 1995 (MHC), the court disregarded the racial element of the disputes, resolving them in terms of principles of contract and civil procedure. See Wiseman Chirwa, Democracy, Ethnicity and Regionalism: The Malawian Experience, 1992-1996 , in Democratisation in Malawi , supra note 109, at 52, 61; Msaiwale Chigawa, Ethnic Discrimination in Education in Malawi: A Study in Social Justice (1996) (unpublished D. Phil thesis, Oxford University).

See Budlender, supra note 1; Courts and Social Transformation in New Democracies, supra note 4; Litigating Economic, Social and Cultural Rights , supra note 103.

Malawi Const. § 111.

Malawi Const. § 117.

Hansard Debates of Parliament, 566-1582, (Mar. 22, 1995).

S. Afr. Const . 1996, § 174(2). The same concern is also reflected in the sensitivity training of judges in equality matters undertaken in South Africa. Budlender, supra note 1.

Statistics concerning judges origins are not available, but an assessment was done based on their names and personal knowledge about their origins.

Almost all judges of the High Court and Supreme Court of Malawi and all professional magistrates obtained their first degrees in law from the University of Malawi. See Malawi Justice Sector and the Rule of Law 85 (Open Society Initiative for Southern Africa 2005), at http://www.soros.org/resources/articles_publications/publications/malawi_20060912/malawi_20060912.pdf .

For a concise overview of the challenges, see Strategic Plan for Malawi 2003–2005 4–5 (Commonwealth Education Fund 2003) , at http://www.commonwealtheducationfund.org/downloads/Latest%20strategic%20plans/sp_malawi.doc .

See Wilson, supra note 84, on Costa Rica; and Courts and Social Transformation in New Democracies, supra note 4, on India.

Ch. 5:01 (1967).

Civil Procedure Act, ch. 6:01, §10(1) (1946).

Mhango v. Attorney General , Civil Cause No. 338 of 1998 (MHC); Alufandika v. Mgwadira , Civil Cause No. 154 of 1995 (MHC).

Administrator, Estate of Dr Banda, supra note 61; Peter von Knipps v. Attorney General . Civil Cause No. 11 of 1998 (MHC).

“[J]udges do not have access to comprehensive Malawian jurisprudence, and as such the development of Malawi's own constitutional and common law principles is compromised.” International Bar Association, Report of Visit to Malawi , 83 (2002) at http://www.ibanet.org/images/downloads/HRIMalawiReport.pdf .

Malawi Judiciary, Development Programme, supra note 73, at 11.

In India, the middle class has effectively used public interest litigation to improve the environment in the cities, in many cases leaving the poor worse off, and thereby breeding skepticism toward public interest litigation. Marc Galanter & Jayanth Krishnan, “ Bread for the Poor”: Access to Justice and the Rights of the Needy in India, 55 Hastings L.J. 789 (2004).

Malawi Housing Corporation Ups Rents by 90 Percent, 31 Malawi News Online , June 23, 1997, at http://www.africa.upenn.edu/Newsletters/mno31.html .

International Bar Association, supra note 147.

It is easier to affirm social rights and devise remedies where it is a matter of including new groups into existing schemes, allowing courts to rely on uncontroversial legal arguments. See Theunis Roux, Legitimating Transformation: Political Resource Allocation in the South African Constitutional Court, in Democratization and the Judiciary: the Accountability Function of Courts in New Democracies (Siri Gloppen et al. eds., Frank Cass 2004).

Government of RSA & Others v. Grootboom & Others 2000 (11) BCLR 1169 (CC) at 72. See Arthur Chaskalson, From Wickedness to Equality: The Moral Transformation of South African Law, 1 Int’l J. Const. L. (I•CON) 590 (2003); Frank Michelman, The Constitution, Social Rights, and Liberal Political Justification, 1 Int’l J. Const. L. (I•CON) 13 (2003).

Email alerts

Citing articles via.

• I·CONnect
• Recommend to your Library

Affiliations

• Online ISSN 1474-2659
• Print ISSN 1474-2640
• Copyright © 2024 New York University School of Law and Oxford University Press
• About Oxford Academic
• Publish journals with us
• University press partners
• What we publish
• New features  
• Open access
• Institutional account management
• Rights and permissions
• Get help with access
• Accessibility
• Advertising
• Media enquiries
• Oxford University Press
• Oxford Languages
• University of Oxford

Oxford University Press is a department of the University of Oxford. It furthers the University's objective of excellence in research, scholarship, and education by publishing worldwide

• Copyright © 2024 Oxford University Press
• Cookie settings
• Cookie policy
• Privacy policy
• Legal notice

This Feature Is Available To Subscribers Only

Sign In or Create an Account

This PDF is available to Subscribers Only

For full access to this pdf, sign in to an existing account, or purchase an annual subscription.

Ethnic and Racial Minorities & Socioeconomic Status

Socioeconomic status (SES) encompasses not just income but also educational attainment, financial security, and subjective perceptions of social status and social class. Socioeconomic status can encompass quality of life attributes as well as the opportunities and privileges afforded to people within society. Poverty, specifically, is not a single factor but rather is characterized by multiple physical and psychosocial stressors. Further, SES is a consistent and reliable predictor of a vast array of outcomes across the life span, including physical and psychological health. Thus, SES is relevant to all realms of behavioral and social science, including research, practice, education and advocacy.

SES Affects our Society

SES affects overall human functioning, including our physical and mental health. Low SES and its correlates, such as lower educational achievement, poverty and poor health, ultimately affect our society. Inequities in health distribution, resource distribution, and quality of life are increasing in the United States and globally. Society benefits from an increased focus on the foundations of socioeconomic inequities and efforts to reduce the deep gaps in socioeconomic status in the United States and abroad.

The relationship between SES, race and ethnicity is intimately intertwined. Research has shown that race and ethnicity in terms of stratification often determine a person’s socioeconomic status (U.S. Census Bureau, 2009). Furthermore, communities are often segregated by SES, race, and ethnicity. These communities commonly share characteristics: low economic development; poor health conditions; and low levels of educational attainment; Low SES has consistently been implicated as a risk factor for many of these problems that plague communities. Research indicates that there are large health disparities based on social status that are pervasive and persistent. These health disparities reflect the inequalities that exist in our society. It is important to understand how various social statuses intersect, because race and socioeconomic status affect health exclusively as well as mutually (Williams & Mohammed, 2013).

SES Impacts the Lives of Many Ethnic and Racial Minorities

Discrimination and marginalization.

Discrimination and marginalization can serve as a hindrance to upward mobility for ethnic and racial minorities seeking to escape poverty.

• In the United States, 39 percent of African-American children and adolescents and 33 percent of Latino children and adolescents are living in poverty, which is more than double the 14 percent poverty rate for non-Latino, White, and Asian children and adolescents (Kids Count Data Center, Children in Poverty 2014).
• Minority racial groups are more likely to experience multidimensional poverty than their White counterparts (Reeves, Rodrigue, & Kneebone, 2016).
• American Indian/Alaska Native, Hispanic, Pacific Islander and Native Hawaiian families are more likely than Caucasian and Asian families to live in poverty (U.S. Census Bureau, 2014).
• Although the income of Asian American families often falls markedly above other minorities, these families often have four to five family members working (Le, 2008). African-Americans (53 percent) and Latinos (43 percent) are more likely to receive high-cost mortgages than Caucasians (18 percent; Logan, 2008).
• African American unemployment rates are typically double that of Caucasian Americans. African-American men working full-time earn only 72 percent of the average earnings of comparable Caucasian men and 85 percent of the earnings of Caucasian women (Rodgers, 2008).

Despite dramatic changes, large gaps remain when minority education attainment and outcomes are compared to white Americans.

• African-Americans and Latinos are more likely to attend high-poverty schools than Asian-Americans and Caucasians (National Center for Education Statistics, 2007).
• From 2000 to 2013 the dropout rate between racial groups narrowed significantly. However, high school dropout rates among Latinos remain the highest, followed by African-Americans and then Whites (National Center for Education Statistics, 2015).
• In addition to socioeconomic realities that may deprive students of valuable resources, high-achieving African American students may be exposed to less rigorous curriculums, attend schools with fewer resources, and have teachers who expect less of them academically than they expect of similarly situated Caucasian students (Azzam, 2008).
• 12.4 percent of African-American college graduates between the ages of 22 and 27 were unemployed in 2013, which is more than double the rate of unemployment among all college graduates in the same age range (5.6 percent; J. Jones & Schmitt, 2014).

Physical Health

Institutional discrimination creates barriers to health care access. Even when stigmatized groups can access care, cultural racism reduces the quality of care they receive (Williams & Mohammed, 2013).

• Racial and ethnic minorities have worse overall health than that of White Americans. Health disparities may stem from economic determinants, education, geography and neighborhood, environment, lower quality care, inadequate access to care, inability to navigate the system, provider ignorance or bias, and stress (Bahls, 2011).
• Socioeconomic status and race/ethnicity have been associated with avoidable procedures, avoidable hospitalizations, and untreated disease (Fiscella, Franks, Gold, & Clancy, 2008).
• At each level of income or education, African-Americans have worse outcomes than Whites. This could be due to adverse health effects of more concentrated disadvantage or a range of experiences related to racial bias (Braveman, Cubbin, Egerter, Williams, & Pamuk, 2010).
• Low birth weight, which is related to a number of negative child health outcomes, has been associated with lower SES and ethnic/minority status (Fiscella et al., 2008).
• There are substantial racial differences in insurance coverage. In the preretirement years, Hispanics and American Indians are much less likely than Whites, African-Americans, and Asians to have any health insurance (Williams, Mohammed, Leavell, & Collins, 2010).

Psychological Health

Socioeconomic deprivation and racial discrimination have been implicated in higher psychological distress.

• Wealth partially explains racial and ethnic differences in depression. Negative net worth, zero net worth and not owning a home in young adulthood are significantly associated with depressive symptoms, independent of the other socioeconomic indicators (Mossakowski, 2008).
• Hispanics and African-Americans report a lower risk of having a psychiatric disorder compared with their white counterparts, but those who become ill tend to have more persistent disorders (McGuire & Miranda, 2008).
• Research on post-traumatic stress disorder (PTSD) indicates that African-Americans, Hispanics, Asians, American Indians, and Native Hawaiians have higher rates of PTSD than Whites, which are not accounted for by SES and their history of psychiatric disorders (Carter, 2007).
• American Indians are at heightened risk for PTSD and alcohol dependence (McGuire & Miranda, 2008).
• Perceived discrimination has been shown to contribute to mental health disorders among racial/ethnic groups such as Asian Americans and African Americans (Jang, Chiriboga, Kim, & Rhew, 2010; Mezuk et al., 2010).
• Compared with Whites, African-Americans are more frequently diagnosed with schizophrenia, a low-prevalence but serious condition (McGuire & Miranda, 2008).

Get Involved

• Consider SES in your education, practice and research efforts.
• Stay up to date on legislation and policies that explore and work to eliminate socioeconomic disparities. Visit the Government Relations webpage for more details.
• Visit APA’s  Office on Socioeconomic Status (OSES) website .
• Visit APA’s Aging website .
• Visit APA’s Office on Ethnic Minority Affairs website .

American Council on Education. (2006, October). Students of color make dramatic gains in college enrollment but still trail Whites in the rate at which they attend college [Press release]. Retrieved from http://www.acenet.edu/AM/Template.cfmSection=Search&template=/CM/HTMLDisplay.cfm&ContentID=21571

Azzam, A. M. (2008). Neglecting higher achievers. Educational Leadership, 66 , 90-92. Retrieved from http://www.ascd.org/publications/educational-leadership

Bahls, C. (2011, October 6). Health policy brief: Achieving equity in health. Health Affairs, 1-6. Retrieved from http://healthaffairs.org/healthpolicybriefs/brief_pdfs/healthpolicybrief_53.pdf

Braveman, P. A., Cubbin, C., Egerter, S., Williams, D. R., & Pamuk, E. (2010). Socioeconomic disparities in health in the United States: What the patterns tell us. American Journal of Public Health, 100 (S1), S186-S196. doi:10.2105/AJPH.2009.166082

Carter, R. T. (2007). Racism and psychological and emotional injury: Recognizing and assessing race-based traumatic stress. The Counseling Psychologist, 35 (1), 13-105. doi:10.1177/0011000006292033

Fiscella, K., Franks, P., Gold, M. R., & Clancy, C. M. (2008). Inequality in quality: Addressing socioeconomic, racial, and ethnic disparities in health care. Journal of the American Medical Association, 283 , 2579- 2584. doi:10.1001/jama.283.19.2579

Jang, Y., Chiriboga, D., Kim, G., & Rhew, S. (2010). Perceived discrimination in older Korean Americans. Asian American Journal of Psychology, 1 (12), 129-135. doi:10.1037/a0019967

Jones, A. R., Thompson, C. J., Oster, R.A., Samadi, A., Davis, M. K., Mayberry, R. M., & Caplan, L. S. (2003). Breast cancer knowledge, beliefs, and screening behaviors among low income, elderly Black women. Journal of the National Medical Association, 95 , 791-797, 802-805.

Jones, J., & Schmitt, J. (2014). A college degree is no guarantee (No. 2014-08). Retrieved from http://cepr.net/publications/reports/a-college-degree-is-no-guarantee

Logan, A. (2008, April 29). The state of minorities: How are minorities faring in the economy? Retrieved from https://www.americanprogress.org/issues/race/news/2008/04/29/4283/the-state-of-minorities/

McGuire, T. G., & Miranda, J. (2008). New evidence regarding racial and ethnic disparities in mental health: Policy implications. Health Affairs, 27, 393-403. doi:10.1377/hlthaff.27.2.393.

Mezuk, B., Rafferty, J. A., Kershaw, K. N., Hudson, D., Abdou, C. M., Lee, H.,... Jackson, J. S. (2010). Reconsidering the role of social disadvantage in physical and mental health: Stressful life events, health behaviors, race, and depression. American Journal of Epidemiology, 172, 1238-1249. doi:10.1093/aje/kwq283

Mossakowski, K. N. (2008). Is the duration of poverty and unemployment a risk factor for heavy drinking? Social Science & Medicine, 67, 947-955. doi:10.1016/j.socscimed.2008.05.019

National Center for Education Statistics. (2007). Status and trends in the education of racial and ethnic minorities. Retrieved from  http://nces.ed.gov/pubs2007/minoritytrends/

National Center for Education Statistics. (2015). The condition of education 2015 (NCES 2015-144). Retrieved from https://nces.ed.gov/pubs2015/2015144.pdf

Reeves, R., Rodrigue, E., & Kneebone, E. (2016). Five evils: Multidimensional poverty and race in America. Retrieved from https://www.brookings.edu/wp-content/uploads/2016/06/ReevesKneeboneRodrigue_MultidimensionalPoverty_FullPaper.pdf

Rodgers, W. M. (2008, September 19). Understanding the Black and White earnings gap: Why do African Americans continue to earn less despite dramatic gains in education? Retrieved from  http://www.prospect.org/cs/articles?article=understanding_the_black_white_earnings_gap

U.S. Census Bureau. (2014). U.S. poverty report. Retrieved from https://www.census.gov/population/projections/data/national/2014.html

U.S. Department of Health & Human Services. (2006). Health care for minority women. Retrieved from  http://www.ahrq.gov/research/minority.pdf

Williams, D. R., Mohammed, S. A., Leavell, J., & Collins, C. (2010). Race, socioeconomic status and health: Complexities, ongoing challenges and research opportunities. Annals of the New York Academy of Sciences, 1186 , 69–101. doi:10.1111/j.1749-6632.2009.05339.x.

Williams, D. R., & Mohammed, S. A. (2013). Racism and health I: Pathways and scientific evidence. American Behavioral Scientist, 57, 1152-1173.

Additional SES Resources

Download Fact Sheet (PDF, 232KB)

Publications

APA Policy Statements on Socioeconomic Status

Ethnic Minority Affairs Resources and Publications

Contact the Socioeconomic Status Office

Economic Marginalization Essays

Analysis and criticism of the article ’african american men and the experience of employment discrimination by sherry n. mong & vincent j. roscigno”, popular essay topics.

• American Dream
• Artificial Intelligence
• Black Lives Matter
• Bullying Essay
• Career Goals Essay
• Causes of the Civil War
• Child Abusing
• Civil Rights Movement
• Community Service
• Cultural Identity
• Cyber Bullying
• Death Penalty
• Depression Essay
• Domestic Violence
• Freedom of Speech
• Global Warming
• Gun Control
• Human Trafficking
• I Believe Essay
• Immigration
• Importance of Education
• Israel and Palestine Conflict
• Leadership Essay
• Legalizing Marijuanas
• Mental Health
• National Honor Society
• Police Brutality
• Pollution Essay
• Racism Essay
• Romeo and Juliet
• Same Sex Marriages
• Social Media
• The Great Gatsby
• The Yellow Wallpaper
• Time Management
• To Kill a Mockingbird
• Violent Video Games
• What Makes You Unique
• Why I Want to Be a Nurse
• Send us an e-mail

Search form

Globalization and the threat of marginalization.

This paper discusses the threat to sideline some economies or sections thereof from the activities that are characteristic of globalization in the contemporary global political economy, in an attempt to definite the term marginalization. This is partly motivated by the observation that no work currently exists that is devoted to defining or conceptualizing marginalization. To meet its objective, the paper specifically addresses the question, how does globalization threaten to marginalize some economies within the global political economy? A review of the limited but existing literature on the term marginalization along with that which uses the implied meaning of the term without actually defining it is conducted. This is accompanied by an outline of some factors that characterize the threat of marginalization in the light of some of the features of the evolving process of  globalization. All in all, marginalization is thus seen to reflect a situation where certain of the world’s economies or populations are seeing declining participation in the activities that characterize the globalizing world. They are being pushed to the margins of such activity.

Other working papers by this author

Oscillations: Short-­term Domestic Policy Considerations and Regional Integration in ...

Marginalization

• Reference work entry
• First Online: 01 January 2022
• pp 3058–3065
• Cite this reference work entry

• Pamela Abbott 3 &
• Roger Sapsford 4  

51 Accesses

Social exclusion

To marginalize people is to fail to accord them the full rights and status of citizens – to define them as falling short of the norm and so disempower them and exclude them from the mainstream of society.

Social inclusion is full membership of a society (see Abbott et al. 2016 , Chap. 4). To the extent that people are denied human or civil rights on the basis of how they are categorized and treated by others, they are socially ex cluded. Older people are described as marginalized when they are seen as not having the mental or physical capacity to survive as independent agents (See “Ableism and Ageism” ). This is often (though not always) the case with older people in industrial and postindustrial societies – old age is seen as a life stage, like childhood, in which people are not fully capable. This is not a medical process but a social discourse embodying a stereotype of older people and their worth to which their circumstances force them to...

This is a preview of subscription content, log in via an institution to check access.

Access this chapter

Subscribe and save.

• Get 10 units per month
• Download Article/Chapter or eBook
• 1 Unit = 1 Article or 1 Chapter
• Cancel anytime
• Available as PDF
• Read on any device
• Instant download
• Own it forever
• Available as EPUB and PDF
• Durable hardcover edition
• Dispatched in 3 to 5 business days
• Free shipping worldwide - see info

Tax calculation will be finalised at checkout

Purchases are for personal use only

Institutional subscriptions

Abbott P, Sapsford R (2005) Living on the margins: older people, place and social exclusion. Policy Stud 26:29–45. https://doi.org/10.1080/01442870500041660

Article   Google Scholar  

Abbott P, Wallace C, Sapsford R (2016) The decent society: planning for social quality. Routledge, Abingdon

Google Scholar  

Beck L (2010) Development through the Lifespan. Allyn and Bacon, Boston

Bell C (1968) Middle class families. Routledge, London

Biggs S, Lowenstein H, Hendrick J (eds) (2003) The need for theory: critical approaches to social gerontology. Baywood, Amityville

Bowyer EC (1999) Better government for older people: a survey of older people in Waverley Borough. University of Surrey, Surrey Social and Market Research, Guildford

Coyle C, Dugan E (2012) Social isolation, loneliness and health among older adults. J Ageing Health 24:1346–1363. https://doi.org/10.1177/0898264312460275

Cummins E, Henry W (1961) Growing old. Basic Books, New York

Gardiner C, Geldenhuys G, Gott M (2018) Interventions to reduce social isolation and loneliness among older people: an integrative review. Health Soc Care Community 26:147–157. https://doi.org/10.1111/hsc.12367

Johnson E, Barer B (2003) Life beyond 85 years. Prometheus, Amherst

Kelly D, Steiner A, Mazzei M, Baker R (2019) Filling a void? The role of social enterprises in addressing social isolation and loneliness in rural communities. J Rural Stud. https://doi.org/10.1016/j.jrurstud.2019.01.024

Morris L (1995) Social divisions. UCL Press, London

Ndungeseokwu C (2016) The golden nature of old age in Africa. Liberty Writers Africa. https://libertywritersafrica.wordpress.com/2016/09/15/the-golden-nature-of-old-age-in-africa/

NHS (2017) Dementia guide. National Health Service, Information Service website. https://www.nhs.uk/conditins/dementia/about/

Patsios D (2006) Pensioners, poverty and social exclusion, in Gordon D, Levitas R and Pemtaziz C (eds) Poverty and SAocia Exclusion in Britain: the Millenium Survey, pp 431–458, Polity Press, Bristol

Phillipson C (1982) Capitalism and the construction of old age. University of York Centre for Housing Policy, York. https://doi.org/10.1017/S0144686X000042206736(71)92410-X

Book   Google Scholar  

Scharf T, Phillipson C, Kingston P, Smith A (2002) Growing older in socially deprived areas. Help the Aged, London

Tudor Hart J (1971) The inverse care law. Lancet 297(7696):405–412. https://doi.org/10.1016/S0140-6736(71)92410-X

van der Geest S (2002a) Respect and reciprocity: care of elderly people in rural Ghana. J Cross Cult Gerontol 17:3–31. https://doi.org/10.1023/A:1014843004627

van der Geest S (2002b) From wisdom to witchcraft: ambivalence towards old age in rural Ghana. Africa 72:437–463. https://doi.org/10.3366/afr.2002.72.3.437

Webster C, Blackman T, Sapsford R, Neil B, Chapman A (2004) A better place to live: social and community cohesion in Middlesbrough. University of Teesside Social Futures Institute, Middlesbrough. http://www.tees.ac.uk/docs/DocRepo/Social%20Futures%20Institute/FinalCommunityCohesionReport.pdf

Download references

Author information

Authors and affiliations.

Centre for Global Development and School of Education, University of Aberdeen, Aberdeen, Scotland, UK

Pamela Abbott

Aberdeenshire, Scotland, UK

Roger Sapsford

You can also search for this author in PubMed   Google Scholar

Corresponding author

Correspondence to Roger Sapsford .

Editor information

Editors and affiliations.

Population Division, Department of Economics and Social Affairs, United Nations, New York, NY, USA

Department of Population Health Sciences, Department of Sociology, Duke University, Durham, NC, USA

Matthew E. Dupre

Section Editor information

Department of Sociology, National University of Singapore, Singapore, Singapore

Rights and permissions

Reprints and permissions

Copyright information

© 2021 Springer Nature Switzerland AG

About this entry

Cite this entry.

Abbott, P., Sapsford, R. (2021). Marginalization. In: Gu, D., Dupre, M.E. (eds) Encyclopedia of Gerontology and Population Aging. Springer, Cham. https://doi.org/10.1007/978-3-030-22009-9_501

Download citation

DOI : https://doi.org/10.1007/978-3-030-22009-9_501

Published : 24 May 2022

Publisher Name : Springer, Cham

Print ISBN : 978-3-030-22008-2

Online ISBN : 978-3-030-22009-9

eBook Packages : Social Sciences Reference Module Humanities and Social Sciences Reference Module Business, Economics and Social Sciences

Share this entry

Anyone you share the following link with will be able to read this content:

Sorry, a shareable link is not currently available for this article.

Provided by the Springer Nature SharedIt content-sharing initiative

• Publish with us

Policies and ethics

• Find a journal
• Track your research

Essays in Information Demand and Utilization

The rise of digital media has allowed for unprecedented access to information. In particular, people are able to form beliefs based on information sources that span the full spectrum of reputation, information quality, and motivated biases. Such access is a double-edged sword because “with great power, comes great responsibility” (“Spider-Man”, 2002). Heterogeneity in information quality may be due to a variety of factors, and it is often up to the consumer to consider quality signals when evaluating the quality of information. My research explores this complicated process, and contributes to the understanding of how people demand and utilize information in different environments. I do so over three chapters. The first studies how people respond to signals of information quality in a sequential prediction game. In the second chapter, biased incentives are introduced in a prediction game experiment to test how intrinsic and extrinsic biases affect demand and utilization of information. The third chapter contains a survey in which subjects report their valuations of an X account that varies on political affiliation, occupation credentials, and number of followers.

My first chapter focuses on how subjects respond to signals of information quality. In it, subjects predict which of two urns was randomly chosen in each of 30 rounds. They observe a private ball drawn from the selected urn each round to help them make their prediction. The color of the ball signals the urn it came from. The subjects then sequentially broadcast their belief about which urn was selected for the session without revealing the color of the observed ball. Future subjects can use the previous broadcasts to infer additional information that may help them accurately predict the urn.

In the control, subjects exhibit very low utilization of previous predictions when informing their own behavior. While consistent with prior research, behaving in such a manner is suboptimal. To experiment on the malleability of subjects’ beliefs about the rationality of others, I implement two novel treatments. In the first, the subjects’ prediction order in the last 15 rounds is determined by their accrued earnings in the first 15 rounds, with highest earners predicting first. The prediction order is similarly determined in the second treatment, except a quiz on conditional updating ability is used. Subjects who score the highest on the quiz predict first. In both cases, the sorting mechanism is explained to the subjects.

Sorting on earnings yields a modest increase in valuations of previous subjects’ predictions. A much more significant increase is observed when sorting on ability. Additionally, the subjects who make the fewest irrational predictions (ones against the color of the ball when they do not have additional information to suggest otherwise) are the ones who score the best in the ability sort. Placing them at the beginning of rounds increases the entire round’s average earnings.

My second chapter uses a similar environment to study the role that bias plays in demanding and utilizing information. In it, participants predict which of two states (red or blue) each of 30 rounds was assigned. To aid them, participants observe two predictions from ‘experts,’ who are informed by a private signal with a known precision. Participants can bid to receive additional information about the state from two sources: a private signal and another independent expert’s prediction. Both sources’ precision is known. This method is the first of its kind, and allows for direct comparison between information types. The bid results are revealed once this process is complete. Participants then predict the state.

Two innovative treatments are implemented to implement bias into the basic environment exogenously. In the first, participants receive a small bonus each time they predict the state is blue. In the second, experts receive the same bonus each time they predict the state is blue instead of the participants. Surprisingly, participants value the private signal and additional expert’s prediction similarly, except when the experts are biased. This is a departure from most research using similar environments, which assume that some sub-optimal behavior can be attributed to mistrust in others’ ability to understand the environment. That assumption may warrant further and more careful evaluation. The most striking valuation behavior is when participants are biased. Their bids are higher when their existing information set already favors their bias, relative to when it is against it. Doing so is antithetical to the rational equilibrium and inconsistent with prior research on confirmation bias.

Participants generally utilize information obtained from a successful bid at a lower rate when it is against the initial experts than with it. No difference is detected between information sources. This is expected, albeit inconsistent with rational decision-making. One exception is noted. When participants are biased, they use the newly obtained information at a much higher rate when it is consistent with their bias than against it. Doing so is at odds with bidding behavior, as it implies participants bid more to receive information that they utilize less. Participants generally do a much better job of rationalizing and responding to the experts’ bias than their own in the experiment.

My third chapter is motivated partly by the findings in my first two chapters, using a more contextualized setting. In it, subjects are presented with a series of X account versions. The versions vary on political affiliation, occupation credentials, and number of followers. Subjects are asked to rate how much they would value information from each account version. Subjects value account versions with an unrevealed political party affiliation more than their analogs which report a party affiliation, regardless of the party or the subject’s beliefs.

A partisan penalty is uniformly implemented. Additionally, credentials are insufficient to overcome bias concerns. The penalty assessed to an account version aligning with a party is similar when the version has high credentials versus when it does not. Followers are also a valuable resource, regardless of political affiliation or credential levels. The marginal value that followers provide is similar for all account versions, meaning that even relative experts in a field should seek validation if they want to be valued by others.

Previous research would expect subjects to value versions more when they are congruent with their own beliefs, so these findings are surprising. Two groups are identified as the most likely to deviate and value same-typed account versions more: subjects who believe echo chambers are good and subjects who are concerned they have believed fake news in the past. The former group does not require a significant number of followers to highly value a politically congruent account version. The latter value politically unaffiliated accounts even more, but are more skeptical of opposition account versions and are even more sensitive to the number of followers they have.

These three chapters explore new avenues for researching how biases and expertise are evaluated and responded to. People are generally much better at considering the potential biases that others have than rationalizing their own biases. I also find good news in an era of heightened concern about eroding trust in experts. In each case, subjects respond to signals of expertise, and demonstrate efforts to exploit the information that experts provide.

Krannert Doctoral Funds

Degree type.

• Doctor of Philosophy

Campus location

• West Lafayette

Advisor/Supervisor/Committee Chair

Additional committee member 2, additional committee member 3, additional committee member 4, usage metrics.

• Experimental economics
• Behavioural economics
• Public economics - public choice

• Environment
• Science & Technology
• Business & Industry
• Health & Public Welfare
• Topics (CFR Indexing Terms)
• Public Inspection
• Presidential Documents
• Document Search
• Advanced Document Search
• Public Inspection Search
• Reader Aids Home
• Office of the Federal Register Announcements
• Using FederalRegister.Gov
• Understanding the Federal Register
• Recent Site Updates
• Federal Register & CFR Statistics
• Videos & Tutorials
• Developer Resources
• Government Policy and OFR Procedures
• Congressional Review
• My Clipboard
• My Comments
• My Subscriptions
• Sign In / Sign Up
• Site Feedback
• Search the Federal Register

This site displays a prototype of a “Web 2.0” version of the daily Federal Register. It is not an official legal edition of the Federal Register, and does not replace the official print version or the official electronic version on GPO’s govinfo.gov.

The documents posted on this site are XML renditions of published Federal Register documents. Each document posted on the site includes a link to the corresponding official PDF file on govinfo.gov. This prototype edition of the daily Federal Register on FederalRegister.gov will remain an unofficial informational resource until the Administrative Committee of the Federal Register (ACFR) issues a regulation granting it official legal status. For complete information about, and access to, our official publications and services, go to About the Federal Register on NARA's archives.gov.

The OFR/GPO partnership is committed to presenting accurate and reliable regulatory information on FederalRegister.gov with the objective of establishing the XML-based Federal Register as an ACFR-sanctioned publication in the future. While every effort has been made to ensure that the material on FederalRegister.gov is accurately displayed, consistent with the official SGML-based PDF version on govinfo.gov, those relying on it for legal research should verify their results against an official edition of the Federal Register. Until the ACFR grants it official status, the XML rendition of the daily Federal Register on FederalRegister.gov does not provide legal notice to the public or judicial notice to the courts.

Design Updates: As part of our ongoing effort to make FederalRegister.gov more accessible and easier to use we've enlarged the space available to the document content and moved all document related data into the utility bar on the left of the document. Read more in our feature announcement .

Implementation of Keeping Families Together

A Notice by the Homeland Security Department on 08/20/2024

This document has been published in the Federal Register . Use the PDF linked in the document sidebar for the official electronic format.

• Document Details Published Content - Document Details Agency Department of Homeland Security Agency/Docket Numbers CIS No. 2779-24 DHS Docket No. USCIS-2024-0010 Document Citation 89 FR 67459 Document Number 2024-18725 Document Type Notice Pages 67459-67490 (32 pages) Publication Date 08/20/2024 RIN 1615-ZC09 Published Content - Document Details
• View printed version (PDF)
• Document Dates Published Content - Document Dates Dates Text DHS will begin using the Form I-131F, Application for Parole in Place for Certain Noncitizen Spouses and Stepchildren of U.S. Citizens, for this process on August 19, 2024. Published Content - Document Dates

This table of contents is a navigational tool, processed from the headings within the legal text of Federal Register documents. This repetition of headings to form internal navigation links has no substantive legal effect.

FOR FURTHER INFORMATION CONTACT:

Supplementary information:, i. background, ii. parole authority and existing family unity parole processes, a. parole authority, b. parole in relation to adjustment of status eligibility, c. existing parole in place processes, d. existing family unity parole processes, iii. parole in place process for certain noncitizen spouses and stepchildren of u.s. citizens, iv. basis for parole—significant public benefit, promoting family unity and stability, strengthening the u.s. economy and the economic position of families and u.s. communities, advancing diplomatic relationships and key foreign policy objectives of the united states, reducing strain on limited u.s. government resources, furthering national security, public safety, and border security objectives, v. eligibility, a. criteria, present in the united states without admission or parole, continuous physical presence since june 17, 2014, marriage to a u.s. citizen, noncitizen stepchildren of u.s. citizens, lack of criminal history, national security concerns, public safety concerns, or border security concerns, b. requestors with unexecuted final removal orders or currently in section 240 proceedings, requestors with unexecuted final removal orders, requestors in section 240 removal proceedings, c. factors considered, vi. filing requirements and processing steps, b. documentation, c. processing steps, filing procedure, biometrics submission, case-by-case consideration for parole, parole period, employment authorization, subsequent form i-130 or form i-485, information use and disclosure, d. termination and no private rights, vii. considerations in the establishment of this parole in place process, a. alternatives to this process, b. resource considerations and impacts on uscis processing, c. potential impact on federal government and access to federal benefits, d. potential impact on states, viii. regulatory requirements, a. analysis of benefits, costs, and governmental transfers, estimated population, transfer payments, tax revenue transfer payments, labor market impacts, b. administrative procedure act, c. paperwork reduction act (pra).

This feature is not available for this document.

FederalRegister.gov retrieves relevant information about this document from Regulations.gov to provide users with additional context. This information is not part of the official Federal Register document.

• Sharing Enhanced Content - Sharing Shorter Document URL https://www.federalregister.gov/d/2024-18725 Email Email this document to a friend Enhanced Content - Sharing
• Print this document

Document page views are updated periodically throughout the day and are cumulative counts for this document. Counts are subject to sampling, reprocessing and revision (up or down) throughout the day.

This document is also available in the following formats:

More information and documentation can be found in our developer tools pages .

This PDF is the current document as it appeared on Public Inspection on 08/19/2024 at 8:45 am.

It was viewed 2 times while on Public Inspection.

If you are using public inspection listings for legal research, you should verify the contents of the documents against a final, official edition of the Federal Register. Only official editions of the Federal Register provide legal notice of publication to the public and judicial notice to the courts under 44 U.S.C. 1503 & 1507 . Learn more here .

Document headings vary by document type but may contain the following:

• the agency or agencies that issued and signed a document
• the number of the CFR title and the number of each part the document amends, proposes to amend, or is directly related to
• the agency docket number / agency internal file number
• the RIN which identifies each regulatory action listed in the Unified Agenda of Federal Regulatory and Deregulatory Actions

See the Document Drafting Handbook for more details.

Department of Homeland Security

• [CIS No. 2779-24; DHS Docket No. USCIS-2024-0010]
• RIN 1615-ZC09

Department of Homeland Security.

Notice of implementation of the Keeping Families Together process.

This notice announces the U.S. Department of Homeland Security's (DHS) implementation of the Keeping Families Together process for certain noncitizen spouses and stepchildren of U.S. citizens who are present in the United States without admission or parole to request parole in place under existing statutory authority. Granting parole in place, on a case-by-case basis, to eligible noncitizens under this process will achieve the significant public benefit of promoting the unity and stability of families, increasing the economic prosperity of American communities, strengthening diplomatic relationships with partner countries in the region, reducing strain on limited U.S. government resources, and furthering national security, public safety, and border security objectives.

DHS will begin using the Form I-131F, Application for Parole in Place for Certain Noncitizen Spouses and Stepchildren of U.S. Citizens, for this process on August 19, 2024.

Rená Cutlip-Mason, Chief, Humanitarian Affairs Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, by mail at 5900 Capital Gateway Drive, Camp Springs, MD 20746, or by phone at 800-375-5283.

Family unity is a bedrock objective of the U.S. immigration system. Nearly 60 years ago, the Immigration and Nationality Act of 1965, a foundation of modern U.S. immigration law, enshrined as a core principle the importance of promoting the ability of U.S. citizens to unify with their relatives—a principle that endures to this day. [ 1 ] Yet, amidst growing demands and challenges, including chronic underfunding of our immigration  [ 2 ] and visa processing backlogs compounded by the COVID-19 pandemic, our ( print page 67460) immigration system has often been challenged in its ability to fully achieve this core principle. U.S. citizens and their noncitizen family members have in many cases faced lengthy processing backlogs and potential years-long separation to access immigration benefits intended by Congress to promote family unity.

DHS estimates that there are approximately 765,000 noncitizens in the United States who are married to U.S. citizens and lack lawful immigration status. [ 3 ] Estimates indicate that the median time these noncitizens have been in the United States is 20 years, and they collectively live with more than 2.5 million U.S. citizen family members, raising and caring for more than 1.6 million U.S. citizen children. [ 4 ] While U.S. immigration law provides noncitizens who are beneficiaries of approved immigrant visa petitions  [ 5 ] filed by their U.S. citizen spouses the opportunity to apply for adjustment of status to that of a lawful permanent resident (LPR) while remaining in the United States, there are certain requirements to adjust status that prevent many noncitizens from availing themselves of this benefit. [ 6 ] In particular, to apply for LPR status while in the United States, an applicant generally must have been “inspected and admitted or paroled” into the United States. [ 7 ]

DHS estimates that more than two-thirds of noncitizens without lawful immigration status who are married to U.S. citizens  [ 8 ] are present in the United States without admission or parole, and as a result, are generally not eligible for adjustment of status. [ 9 ] They must therefore depart the United States and seek an immigrant visa at a U.S. embassy or consulate abroad. However, if they choose to depart the United States, they face uncertainty about whether they will be granted an immigrant visa and be able to return to the United States. [ 10 ] The noncitizen also must remain abroad while waiting for their immigrant visa application to be processed at a U.S. embassy or consulate and any necessary waiver applications to be processed by U.S. Citizenship and Immigration Services (USCIS), and as a result, they may be separated from their U.S. citizen family members for months or years. [ 11 ] The length and uncertainty of the process, along with the prospect of either separating from their U.S. citizen family members or uprooting them to travel abroad creates a disincentive and makes it difficult for noncitizens to pursue LPR status despite their eligibility to apply.

Recognizing the harms that families and communities face every day as a result of flaws in the U.S. immigration system, President Joseph R. Biden in 2021 directed DHS and other agencies to “identify barriers that impede access to immigration benefits and fair, efficient adjudications of these benefits and make recommendations on how to remove these barriers, as appropriate and consistent with applicable law.”  [ 12 ] In response to the President's directive, DHS and its immigration components, including USCIS, have taken several steps to promote accessibility and increase efficiency in the immigration system. [ 13 ]

On June 18, 2024, President Biden announced that DHS would take action to preserve the unity of U.S. citizens and their noncitizen spouses and noncitizen stepchildren who currently cannot access LPR status without first departing the United States. [ 14 ] In furtherance of the President's directive, DHS is now establishing a process, through its existing discretionary parole authority under INA section 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A) , [ 15 ] for DHS to consider, on a case-by-case basis, parole in place requests filed by certain noncitizen spouses and stepchildren of U.S. citizens. If granted parole in place, these noncitizens, if otherwise eligible, could apply for adjustment of status to that of an LPR, rather than having to depart the United States to pursue an immigrant visa, as the parole in place would satisfy the “inspected and admitted or paroled” requirement. [ 16 ]

This process does not change or eliminate the eligibility criteria for adjustment of status to that of an LPR. Noncitizens who are granted parole in place under this process will still have to satisfy all other statutory and regulatory requirements when applying to adjust status to that of an LPR, including that they have an approved immigrant visa petition based on a bona fide relationship to a U.S. citizen, are admissible to the United States, and merit a grant of adjustment of status as ( print page 67461) a matter of discretion. [ 17 ] Eligibility for a family-based immigrant visa petition (Form I-130, Petition for Alien Relative), [ 18 ] and application to adjust status to that of an LPR (Form I-485, Application to Register Permanent Residence or Adjust Status), will be determined in a distinct and separate process from the parole in place adjudication.

This process will be available to certain noncitizen spouses of U.S. citizens who are present in the United States without admission or parole; who have been continuously physically present in the United States for a minimum of ten years as of June 17, 2024 (that is, continuously physically present since June 17, 2014 and through the date of filing the request for parole); who have a legally valid marriage to a U.S. citizen as of June 17, 2024; who have no disqualifying criminal history;  [ 19 ] who do not pose a threat to national security, public safety, or border security; and who merit parole in place as a matter of discretion. Certain noncitizen stepchildren of U.S. citizens may also request parole in place under this process, provided that they have been continuously physically present in the United States without admission or parole since June 17, 2024 through the date of filing, have no disqualifying criminal history and do not pose a threat to national security or public safety, meet the INA's definition and requirements of a stepchild  [ 20 ] of a U.S. citizen, and merit parole in place as a matter of discretion.

Only noncitizens who are “applicants for admission” to the United States may be eligible for parole. [ 21 ] Noncitizens who lack lawful status but were inspected and admitted to the United States are not eligible for parole. [ 22 ] This parole in place process is available specifically to noncitizens who are present in the United States without admission or parole and who remain applicants for admission. Requests for parole in place under this process will be considered on a case-by-case basis in the exercise of discretion. Positive and negative discretionary factors will be considered when determining whether to grant parole in place to a noncitizen, based on significant public benefit or urgent humanitarian reasons. DHS estimates that 500,000 noncitizen spouses and 50,000 noncitizen stepchildren of U.S. citizens may meet the requirements to request parole in place under this process. [ 23 ]

As described elsewhere in this Federal Register notice (notice), the authority to parole applicants for admission “in place”— i.e., while the noncitizen is present within the United States without having been admitted—is consistent with DHS's longstanding interpretation of its authorities, and DHS continues to believe that it reflects the best reading of the statute. [ 24 ] The parole authority has been used for over 15 years in the specific context of preserving family unity for military families. [ 25 ] In 2010, USCIS provided guidance to its officers on considering parole in place requests submitted by noncitizen family members of U.S. military service members, which enables them to adjust status without leaving the United States, [ 26 ] an authority Congress legislatively reaffirmed in 2019. [ 27 ] Congress has also expressed support in legislation for the use of DHS's parole authority in certain instances as a discretionary tool where justified for urgent humanitarian reasons or significant public benefit. [ 28 ]

As explained more fully in Section IV of this notice, the Secretary of Homeland Security's (“Secretary”) exercise of the parole authority in this manner will provide a significant public benefit to the United States, including to ( print page 67462) the impacted U.S. citizens, noncitizens, their families, and their communities at large. First, it will promote family unity by enabling U.S. citizen spouses and children to remain with their noncitizen family members while their noncitizen family members apply for adjustment of status to that of an LPR, thus promoting stability and preventing avoidable disruptions to these families. Second, it will advance U.S. economic and labor interests by enabling paroled noncitizens to work lawfully in the United States and contribute economically to their families and communities. [ 29 ] Third, it will further critical U.S. diplomatic interests and U.S. foreign policy objectives of managing migration, increasing economic stability, and fostering security in the United States and in partner countries in the region. Fourth, it will preserve limited resources across U.S. government agencies that may otherwise be expended on consular processing and removal proceedings. Fifth, it will further national security, public safety, and border security objectives by encouraging noncitizens to provide information for background and security checks.

The Secretary, and those other officials as designated by the Secretary, [ 30 ] have the discretionary authority under INA section 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A) , to parole any applicant for admission “into the United States temporarily under such conditions as [the Secretary] may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit.”

DHS's parole authority extends to noncitizens inside the United States who have not been “admitted” as defined in the INA through a practice known as “parole in place.”  [ 31 ] Parole is available to an “applicant for admission,” which the INA defines in relevant part as “[a]n alien present in the United States who has not been admitted or who arrives in the United States.”  [ 32 ] Because the INA creates a distinct meaning for “admission,” noncitizens who have entered the United States without having been “admitted” are still considered “applicants for admission,” even though they are physically inside the United States, and may be paroled in accordance with INA section 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A) . Longstanding DHS legal opinions have affirmed the availability of parole in place under U.S. immigration law, as discussed elsewhere in this notice. [ 33 ]

Parole is neither an admission of the noncitizen to the United States nor a determination of admissibility, and a parolee remains an applicant for admission during the period of parole in the United States. [ 34 ] DHS sets the duration of the period of parole based on the purpose for granting the parole request and may also impose conditions on parole. [ 35 ] DHS may terminate parole in its discretion at any time. [ 36 ] By regulation, parolees may apply for and be granted employment authorization to work lawfully in the United States during their period of parole. [ 37 ] While in a period of parole, noncitizens do not accrue unlawful presence for purposes of inadmissibility under INA sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I), 8 U.S.C. 1182(a)(9)(B)(i) and 1182(a)(9)(C)(i)(I) . [ 38 ]

The parole authority has long been interpreted to allow for designation of specific groups of noncitizens for whom parole should be favorably considered as furthering a significant public benefit or for urgent humanitarian reasons, as long as the parole of each noncitizen within the group furthers such significant public benefit or addresses such urgent humanitarian reasons, as determined on a discretionary, case-by-case basis. [ 39 ] Congress has repeatedly expressed support in legislation for the use of DHS's parole authority to benefit individuals falling within particular groups. [ 40 ]

To be eligible for adjustment of status, an applicant generally must, among other requirements, have been “inspected and admitted or paroled into the United States.”  [ 41 ] A grant of parole, including parole in place, under INA ( print page 67463) section 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A) , satisfies this threshold requirement. [ 42 ]

The noncitizen must also satisfy all other requirements for adjustment of status, including establishing that they are not inadmissible under any applicable grounds, [ 43 ] and that they merit a favorable exercise of discretion including not being a threat to public safety or national security. [ 44 ]

Parole in place is currently used for certain noncitizens to promote family unity and remove barriers to adjustment of status. As federal courts, including the Supreme Court, have long recognized, “parole creates something of legal fiction,” as a paroled noncitizen is allowed to be present in the United States temporarily but remains an “applicant for admission” as defined in INA 235(a)(1), 8 U.S.C. 1225(a)(1) , pending the granting of relief from removal such as asylum or adjustment of status. [ 45 ] Through this well-established legal fiction, the statute has long authorized the parole of applicants for admission “into the United States”—whether in the form of temporary release from immigration custody or otherwise—even after they have crossed into the United States and are already physically present in the country. [ 46 ]

Congress preserved this legal fiction in IIRIRA while expanding the legal concept of an “applicant for admission.” Congress provided that any noncitizen who is present in the United States without admission “shall be deemed . . . an applicant for admission,”  [ 47 ] and that although the Secretary may parole “any [noncitizen] applying for admission,” such parole does not constitute an admission, and the parolee remains an applicant for admission. [ 48 ] Thus, “even noncitizens already physically present in the United States” after having entered without inspection remain applicants for admission unless and until they are admitted or removed and “may be eligible for humanitarian or public benefit parole under [section 212(d)(5)(A) of the INA] by virtue of their status as applicants for admission.”  [ 49 ] Put differently, because noncitizens physically present without authorization are deemed “applicants for admission,” they are therefore “applying for admission to the United States,”  [ 50 ] and thus eligible under the parole statute for parole “into the United States.”  [ 51 ]

DHS, like the former INS, has long understood section 212(d)(5)(A) as allowing for parole of applicants for admission who entered the United States without inspection and admission at a port of entry and were present in the country beyond the border. The INS General Counsel issued an opinion in 1998 adopting that straightforward, reasonable construction of the statute. [ 52 ] In 2007, the DHS General Counsel issued an opinion endorsing the 1998 INS General Counsel opinion in relevant part. [ 53 ] The Department also, for example, issued a Federal Register notice in 2002 providing that applicants for admission who are encountered in the United States within two years of having entered by sea unlawfully and who are placed in expedited removal proceedings may be “paroled into the United States” under INA section 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A) . [ 54 ]

In 2013, relying on existing statutory authorities, USCIS issued policy guidance on the parole in place process for family members of certain current or former members of the U.S. Armed Forces. Pursuant to that guidance, a grant of parole enables those family members to meet the “inspected and admitted or paroled” requirement for adjustment of status. [ 55 ] In November 2014, the Secretary directed USCIS to expand on these policies to include family members of U.S. citizens and LPRs who seek to enlist in the U.S. Armed Forces. [ 56 ]

In 2019, Congress explicitly recognized that parole in place is a legitimate use of parole authority under INA section 212(d)(5). [ 57 ] That legislation “reaffirmed” “the importance of the Secretary's parole in place authority.”  [ 58 ] More specifically, this emphasized that the use of “parole in place reinforces the objective of military family unity,” and directed DHS to “consider, on a case-by-case basis, whether granting the [parole in place] request would enable military family unity that would constitute a significant public benefit.”  [ 59 ] That same year, Congress provided a new long-term immigration status specifically for certain noncitizens in the Commonwealth of the Northern Mariana Islands who had been paroled in place by USCIS for various reasons, including family unity, and authorized continued parole in place for those noncitizens pending adjudication of their applications for the new status. [ 60 ]

In the National Defense Authorization Act for FY 2020, Congress legislatively reaffirmed the use of parole for noncitizens already physically present within the United States, indicating Congress's intent that parole in place of individuals already present in the United States constitutes a parole “into the United States. [ 61 ] Likewise, at least two courts of appeals have endorsed this long-standing understanding of the INA, which DHS continues to believe constitutes the best reading of the statute. [ 62 ]

According to USCIS data, since it announced the parole in place process for certain military family members in 2013, approximately 82,000 noncitizens have applied for, and 61,000 noncitizens have received, parole in place as the spouse, child, or parent of a servicemember, reservist, or veteran of the U.S. Armed Forces, as of June 30, 2024. [ 63 ]

Past Secretaries have similarly exercised the parole authority to promote family unity for noncitizens outside the United States who are waiting for a family-based immigrant visa to become available. [ 64 ]

For example, the Cuban Family Reunification Parole (CFRP) Program, established in 2007, allows U.S. citizens and LPRs to request parole for certain eligible family members in Cuba who are the beneficiaries of an approved Form I-130. [ 65 ] If parole is authorized, these family members may travel to the United States before their immigrant visa priority dates are current and seek parole at a U.S. port of entry to reunify with their family members while awaiting availability of an immigrant visa. In 2014, USCIS launched the Haitian Family Reunification Parole (HFRP) Program, a similar process for U.S. citizens and LPRs with eligible family members in Haiti. [ 66 ] In 2016, USCIS announced a family reunification process to allow certain Filipino World War II veterans in the United States to reunite with their eligible family members who are waiting for their immigrant visas to become available. [ 67 ]

More recently, DHS announced the implementation of new Family Reunification Parole (FRP) processes for nationals of Colombia, [ 68 ] Ecuador, [ 69 ] El Salvador, [ 70 ] Guatemala, [ 71 ] and Honduras, [ 72 ] and their immediate family members, who have approved family-based immigrant visa petitions filed on their behalf by a U.S. citizen or LPR. DHS also announced updates to the existing CFRP and HFRP processes to adopt the same modernized and streamlined processing steps implemented for the newer FRP processes. [ 73 ]

Under this new process, USCIS will consider requests for parole in place from noncitizen spouses of U.S. citizens who are present in the United States without admission or parole and have been continuously physically present for at least 10 years as of June 17, 2024 (that is, continuously physically present since June 17, 2014), and remain continuously physically present through the date they file their request for parole in place. USCIS will also consider parole in place requests from certain noncitizen stepchildren of U.S. citizens provided that they have been continuously physically present in the United States without admission or parole since June 17, 2024 and through the filing of their request for parole in place, and meet the INA's definition of a stepchild of a U.S. citizen. [ 74 ]

Upon receipt of a properly filed parole in place request, [ 75 ] USCIS will determine whether the noncitizen meets the criteria outlined in this notice, whether a grant of parole in place is warranted based on significant public benefit or urgent humanitarian reasons, and whether the requestor merits a favorable exercise of discretion. All parole in place requests will be considered on a case-by-case basis as required under the parole statute. [ 76 ]

USCIS will exercise its unfettered discretion in administering this process and prioritizing requests consistent with the statute and any applicable regulations. For example, if it determines that the evidence submitted does not establish eligibility for parole in place, USCIS may, in its discretion, issue a request for evidence, issue a notice of intent to deny, or deny the request without requesting additional information or evidence. [ 77 ] In addition, requestors may be required to appear for an interview. [ 78 ] There is no right to the adjudication of a parole request, including within any given period. Nor is there a right to an administrative appeal.

USCIS will consider on a case-by-case basis: criminal history; any previous removal proceedings and removal orders; the results of background checks, which include national security and public safety vetting; positive and adverse factors presented by the requestor; and any other relevant information available to or requested by USCIS. Noncitizens who have been convicted of serious offenses will be ineligible for this process, as will those whom USCIS determines, in its discretion, otherwise pose a threat to national security, public safety, or border security. [ 79 ] Other criminal convictions, excluding minor traffic offenses, will result in a rebuttable presumption of ineligibility for parole in place. This presumption can be rebutted on a case-by-case basis by weighing the seriousness of the conviction against mitigating factors relating to the conviction as well as other positive factors that suggest that the noncitizen merits a favorable exercise of discretion. Noncitizens with pending criminal charges will be ineligible for parole in place under this process, until those charges are resolved. [ 80 ]

Eligible noncitizens who are currently in removal proceedings and do not have a final order of removal may request parole in place. However, if the noncitizen would otherwise constitute a national security, public safety, or border security concern, [ 81 ] they will be ineligible to receive parole in place pursuant to this process. [ 82 ] USCIS will evaluate, in the exercise of its discretion, the existence and circumstances of the removal proceedings in determining whether the noncitizen may be granted parole in place. Noncitizens with unexecuted final removal orders are presumptively ineligible for this process. In the exercise of its discretion, USCIS will evaluate the facts and circumstances underlying the unexecuted final removal order, including the basis for the removal order, to determine whether the noncitizen may overcome the presumption of ineligibility and be granted parole in place. [ 83 ] In so doing, USCIS will coordinate as necessary with the U.S. Immigration and Customs Enforcement (ICE) Office of the Principal Legal Advisor (OPLA).

Parole determinations are reserved to the exclusive discretionary authority of DHS. If parole in place is denied, there is no right to an administrative appeal, and neither immigration judges nor the Board of Immigration Appeals (BIA) have the authority to consider or review parole requests. [ 84 ]

Nothing in this notice or the implementation of this parole in place process is intended to limit DHS's authority to take enforcement actions in accordance with the INA and consistent with governing policies and practices. DHS may initiate and pursue enforcement action pursuant to its enforcement priorities  [ 85 ] under its existing authorities notwithstanding a noncitizen's intent to request parole in place, eligibility to request parole in place, filing of a request for parole in place, or grant of parole in place under this process.

Granting parole in place on a case-by-case basis to noncitizens who meet the criteria outlined in this notice and merit a favorable exercise of discretion will generally provide a significant public benefit to the United States, including to the impacted noncitizens, their families, and their communities at large by: (1) promoting family unity and stability; (2) strengthening the U.S. economy and the economic position of families and U.S. communities; (3) advancing diplomatic relationships and key foreign policy objectives of the United States; (4) reducing strain on limited U.S. government resources; and (5) furthering national security, public safety, and border security objectives. Through a case-by-case assessment, USCIS will consider whether parole for each requestor individually will provide a significant public benefit to further these goals.

This process will promote family unity by allowing certain noncitizens who have long lived in the United States to apply for permanent residence, if otherwise eligible, in the United States without separating them from their U.S. citizen spouses and, in many cases, their U.S. citizen children. Courts have long recognized preservation of family unity to be a “prevailing purpose” of U.S. immigration law. [ 86 ] This use of the Secretary's statutory parole authority addresses a barrier that currently prevents many of these otherwise eligible noncitizens from ( print page 67466) obtaining LPR status and will also promote the long-term sense of security and stability for these families.

This process will benefit an estimated 500,000 noncitizen spouses and 50,000 noncitizen stepchildren. [ 87 ] The noncitizen spouses eligible for this process have lived in the United States for a median time period of 23 years, illustrating the depth of their ties to the country. [ 88 ] More than 1.6 million U.S. citizen family members, including 1.1 million U.S. citizen children, are estimated to live with these noncitizen family members. [ 89 ] Absent this process, for these noncitizens to apply for permanent residence, their U.S. citizen spouses and children might have to endure prolonged separation from them, which would disrupt their lives, create instability, and result in avoidable economic and emotional hardship. Without this process, hundreds of thousands of noncitizen spouses of U.S. citizens are likely to instead remain in the United States without lawful status, causing these families to live in fear and with uncertainty about their futures. [ 90 ]

In justifying the establishment of the parole in place process for military families in partnership with the Department of Defense, USCIS described how in the absence of such a process, service members faced “stress and anxiety because of the immigration status of their family members in the United States.”  [ 91 ] Here, too, access to parole in place will reduce the stress and anxiety of U.S. citizen spouses and children by providing stability for these families in the short and long term.

If parole in place is granted, the noncitizen will be immediately eligible to apply for employment authorization for the duration of their parole period, which will benefit both their U.S. citizen family members and the broader U.S. economy. Additionally, this process will provide these noncitizens the ability to work lawfully, [ 92 ] which will facilitate greater access to job mobility and improve overall economic productivity;  [ 93 ] provide stable, consistent support to their U.S. citizen family members;  [ 94 ] reduce their risk of facing labor exploitation;  [ 95 ] and allow for these noncitizens to contribute their full talents to the U.S. workforce. [ 96 ]

Currently, an estimated 65 percent of noncitizens over the age of 16 who do not have lawful status are already participating in the U.S. workforce, and many are self-employed. [ 97 ] The noncitizen spouses of U.S. citizens covered by this process generally lack access to employment authorization and are therefore prevented from contributing as fully to the economy as they otherwise could. Like other U.S. families, U.S. citizen spouses, noncitizen spouses, and their families pay taxes and stimulate the economy by consuming goods and services. These activities contribute to further growth of the economy and create additional jobs and opportunities for U.S. citizens. [ 98 ] Providing these noncitizens access to employment authorization could also increase their labor force participation in a tight labor market, where there are more jobs than workers. [ 99 ]

U.S. citizen family members will also benefit from the stability offered through this process. Absent this process, applying for LPR status requires noncitizens who are present without admission or parole (PWAP) to depart the United States and remain abroad for an indefinite period, which is disruptive to the family's economic and emotional wellbeing. By contrast, parole and the subsequent ability to apply for LPR status from within the United States will enable these noncitizens to consistently support and provide for their U.S. citizen family members.

Access to employment authorization will also reduce potential labor exploitation, furthering a DHS and government-wide interest. [ 100 ] Research demonstrates that noncitizens who lack employment authorization are more likely to experience violations of labor laws, including laws governing workplace conditions and minimum wages. [ 101 ] They are also less likely to report those violations to enforcement agencies because of their unauthorized status. [ 102 ] This allows unscrupulous ( print page 67467) employers to unfairly compete with those who hire U.S. workers. [ 103 ]

In addition, although undocumented noncitizens contribute billions in Federal, State, and local taxes each year, regularizing the status of this population has the potential to increase these tax revenues. [ 104 ] Noncitizens who lack employment authorization may file taxes using an Individual Taxpayer Identification Number (ITIN). Past estimates suggest that noncitizens filing with ITINs pay billions in withheld payroll taxes annually. [ 105 ] While a precise estimate of the tax compliance rate among the undocumented population is unknown, government agencies and nongovernmental organizations have previously inferred that it may be between 50 to 75 percent. Providing access to employment authorization for this population would increase tax revenues by decreasing barriers to compliance with the tax code and increasing the earning potential of these noncitizens. [ 106 ]

The benefits of facilitating access to employment authorization for this particular population far outweigh the potential costs to American workers or to the U.S. economy. First, a review of economic studies concludes that providing legal status to unauthorized noncitizens does not harm U.S.-born and other workers in the longer term, as the impact of immigration on wages overall is both limited and very small. [ 107 ] Second, the impact on public benefits at both the State and Federal level is expected to be minimal, at least initially, as these noncitizens would be ineligible to access most means-tested benefits for five years after being granted parole in place, as discussed in detail in Section VII.C. of this notice. [ 108 ] See additional discussion of benefits related to the economy and labor market in Section VIII.A. of this notice.

This process responds to the requests and interests of key foreign partners and aligns with the U.S. government's broader foreign policy objectives to collaboratively manage migration and promote economic stability in countries throughout the Western Hemisphere.

The significant majority of noncitizens who stand to benefit from this process are nationals of Western Hemisphere countries that serve as key migration management partners of the United States. An estimated 64 percent of the noncitizens who are likely to access this process are Mexican nationals, while 20 percent are from Guatemala, Honduras, and El Salvador. [ 109 ] An additional 13 percent are nationals of other Western Hemisphere countries. [ 110 ]

The United States continues to engage with partner countries in the Western Hemisphere to manage extraordinary levels of migration. These efforts include addressing the root causes of migration, expanding access to lawful pathways, and disrupting human smuggling, trafficking, and criminal networks that prey on the most vulnerable individuals. As part of the strategy to reduce irregular migration and ensure migrants have access to protection, services and employment, the United States has worked with its partners to ensure migrants in other countries have access to regularization programs.

For example, as part of a multilateral process involving 21 countries, in May 2024, Ecuador announced a new regularization program under which certain migrants are able to obtain a temporary resident permit, while others are able to apply for a temporary visa. [ 111 ] Colombia has given 10-year temporary protected status to approximately 2.5 million Venezuelans, [ 112 ] and announced a plan for parents and legal guardians of children with such status to obtain special permits. Colombia also announced a new special permanent visa for Latin American and Caribbean migrants without regular status in the country. Similarly, Costa Rica committed to expand its Special Temporary Category regularization pathway and reduce barriers to access with continued assistance from the international community. [ 113 ]

This parole in place process demonstrates U.S. partnership and commitment to the shared goals of addressing migration through the Western Hemisphere. Partner countries have requested regularization of their respective nationals who have lived in the United States for long periods of time without lawful status. [ 114 ] For ( print page 67468) example, the Government of Mexico has urged the United States to regularize Mexican nationals who are long-term residents of the United States. [ 115 ] Further, the Government of Colombia has requested that the United States regularize certain Colombian nationals living in the United States. Both Mexico and Colombia have partnered closely with the United States to address irregular migration. [ 116 ] This parole in place process will therefore strengthen the United States' ability to cooperate and engage with these and other key partners in the region. This cooperation and engagement extends to matters of national and border security as well.

This process will also further the key foreign policy objectives of increasing economic stability in countries that are major sources of migration to the United States. By providing certain noncitizen long-term residents of the United States the ability to access employment authorization and adjustment of status, this process will enhance their ability to send remittances to family members in their countries of origin, promoting stability and reducing incentives for those family members or others to irregularly migrate to the United States. [ 117 ] Remittances play a pivotal role in origin countries' economies in the Western Hemisphere. In 2023, remittances received by the countries of Latin America and the Caribbean reached $154 billion. [ 118 ] Remittances are crucial to low- and middle-income countries, as they can improve a country's ability to repay debt and national banks can use future inflows as collateral to lower the costs of international borrowing. [ 119 ]

The process will also provide the significant public benefit of preserving and more effectively using limited U.S. government resources for DHS (including USCIS and ICE), DOS, and DOJ (EOIR). USCIS anticipates that this process will ultimately reduce pressure on the overlapping, lengthier, and more complex Form I-601A, Application for Provisional Unlawful Presence Waiver, workload. [ 120 ]

As of the third quarter of FY 2024, nearly 124,000 Forms I-601A were pending adjudication, and the median processing time to adjudicate a Form I-601A was 41.7 months. Of these pending applications, approximately 44,000, or 35 percent, were filed by noncitizens who have been in the United States for 10 years or more and are married to a U.S. citizen. While increased resources have allowed USCIS to complete more Form I-601A adjudications in FY 2024 year-to-date than in all of FY 2023, the backlog has only been reduced by 5,000 since the start of FY 2024. Although USCIS will carefully consider parole in place requests under this process on a case-by-case basis, USCIS expects that these adjudications will require fewer resources than those required to adjudicate the Form I-601A, given the nature of the adjudication. For example, requestors for this parole in place process will be required to file online, allowing for a more efficient adjudication, while the Form I-601A can only be filed on paper through the mail. USCIS has leveraged many of the efficiencies  [ 121 ] developed for the online Form I-131 in the development of Form I-131F, which will be both filed and adjudicated electronically. Furthermore, as described elsewhere in this notice, the Form I-601A is a more complex adjudication involving the determination of various factors, including whether the noncitizen has met their burden to show they would be inadmissible only under INA section 212(a)(9)(B)(i) at the time of their consular interview, and whether they have demonstrated extreme hardship to a qualifying relative as required under INA section 212(a)(9)(B)(v), issues that are inherently more difficult to assess in comparison to a discretionary parole request.

USCIS also anticipates that a significant number of noncitizens who may have otherwise filed Form I-601A as a step towards obtaining lawful permanent residence will instead pursue a parole in place request under this process. If future I-601A workloads are reduced, USCIS will be better able to focus on reducing the I-601A backlog, while assuming fewer new I-601A filings.

Although USCIS created a new Form I-131F to support this process, and USCIS will assume a new workload by accepting these parole in place requests, it will offset this new workload by charging a filing fee of $580 as it generally does for parole requests filed online. [ 122 ] Thus, USCIS anticipates it will recover the costs associated with this new workload through the fees collected.

Because this process may result in fewer noncitizens filing Forms I-601A and pursuing immigrant visa applications at U.S. embassies or consulates, the parole in place process is also expected to reduce strain on DOS. Consular processing of an immigrant visa application after USCIS approves a Form I-601A involves significant DOS resources. The provisional unlawful presence waiver does not take effect until the applicant departs the United States, appears for an immigrant visa interview at a U.S. embassy or consulate, and is determined by a consular officer to be otherwise eligible for an immigrant visa in light of the approved provisional waiver. [ 123 ] If the consular officer finds that the noncitizen is inadmissible based on a ground other than INA section 212(a)(9)(B)(i), 8 U.S.C. 1182(a)(9)(B)(i) , the provisional unlawful presence waiver is automatically revoked, and the noncitizen must seek a waiver of inadmissibility for all waivable grounds of inadmissibility through filing a Form I-601, Application for Waiver of ( print page 67469) Grounds of Inadmissibility. [ 124 ] In such cases, the noncitizen must await USCIS adjudication of the Form I-601, which has a median processing time of 20.5 months. This revocation followed by a new adjudication adds to the DOS workload and reduces interview availability for other visa applicants. The parole in place process may thus help decrease future wait times for other noncitizens who have a visa number and are waiting for a visa interview at a U.S. embassy or consulate. Despite considerable efforts, some U.S. consular sections are still working to reduce backlogs caused by the COVID-19 pandemic. [ 125 ] As of June 2024, DOS's National Visa Center (NVC) had 394,836 individuals awaiting an immigrant visa interview; on average, the NVC can schedule 48,898 applicants for interviews each month. [ 126 ] If, as anticipated, more noncitizens pursue adjustment of status instead of consular processing, DOS could save consular interview appointments for other immigrant and nonimmigrant visa categories. While this would result in an increase in USCIS' adjustment of status workload, those filings will be accompanied by the required fee; USCIS believes that on net, implementation of the parole in place process will result in saving government resources compared to the status quo.

The parole in place process also may save resources for ICE and the Department of Justice (DOJ) Executive Office for Immigration Review (EOIR) if, as a result of being granted parole in place and pursuing adjustment of status, fewer members of this population are placed in or remain in removal proceedings. Additionally, noncitizens who meet the criteria and are not priorities for enforcement may request to be considered for parole in place under this process, despite currently being in removal proceedings. If granted parole in place, they may seek to have their removal proceedings terminated or dismissed  [ 127 ] and apply to adjust their status. [ 128 ] In the currently overburdened immigration court system, cases that are terminated or dismissed free up court time and permit immigration judges and ICE OPLA attorneys to focus on priority cases.

This process will promote national security, public safety, and border security by requiring noncitizens who choose to request parole in place under this process to submit biometric and biographic information to DHS and undergo background and security checks. The information collected through this process will be used to thoroughly vet every requestor and may identify and disqualify individuals who pose a national security, public safety, or border security threat. [ 129 ] DHS has also determined that the criteria outlined in this notice—such as the requirements that the requestor have 10 years of continuous physical presence in the United States and that the marriage to a U.S. citizen must have occurred on or before June 17, 2024—promote process integrity, prevent potential fraud, and provide greater certainty about the scope of the potential population.

Further, noncitizens granted parole may be more willing to report crimes because they will be less fearful that interacting with law enforcement will result in an immigration enforcement action. [ 130 ] One study found that 59 percent of Deferred Action for Childhood Arrivals (DACA) recipients would report a crime that they would not have reported before receiving DACA. [ 131 ] In that same study, two-thirds of respondents said they were less afraid of law enforcement after receiving DACA. [ 132 ] Additionally, studies have shown that when vulnerable communities feel safer reporting crimes, law enforcement can create more comprehensive strategies to effectively target perpetrators. [ 133 ]

To be considered for a discretionary grant of parole in place under this process, a requestor who is the noncitizen spouse of a U.S. citizen must meet the following criteria:

• Be present in the United States without admission or parole;
• Have been continuously physically present in the United States since at least June 17, 2014 through the date of filing the parole in place request;
• Have a legally valid marriage to a U.S. citizen on or before June 17, 2024;
• Have no disqualifying criminal history; and
• Submit biometrics, undergo required background checks and national security, public safety, and border security vetting, and be found not to pose a threat to national security or public safety.

To be considered for a discretionary grant of parole in place under this process, a requestor who is the stepchild of a U.S. citizen must meet the following criteria:

• Have a parent who entered into a legally valid marriage with a U.S. citizen on or before June 17, 2024 and before the child's 18th birthday;
• Have been continuously physically present in the United States since at least June 17, 2024 through the date of filing;
• Submit biometrics, undergo required background checks and national security and public safety vetting, and be found not to pose a threat to national security or public safety.

The burden is on the requestor to demonstrate by a preponderance of the evidence that they meet the criteria outlined in this notice, and that parole ( print page 67470) is warranted as a matter of discretion for urgent humanitarian reasons or significant public benefit. Meeting the requirements for parole in place under this process does not establish eligibility for other immigration benefits, including LPR status.

A requestor must be present in the United States without admission or parole. Noncitizens who were last admitted with a valid nonimmigrant visa but have remained in the United States beyond the period of stay authorized are not eligible for parole in place. [ 134 ]

Noncitizen spouses of U.S. citizens requesting parole in place under this process must have been continuously physically present in the United States since at least June 17, 2014, through the date of filing the parole in place request. Requestors should provide documentation to account for as much of the period as reasonably possible, but there is no requirement that every day or month of that period be specifically accounted for through direct evidence. [ 135 ] USCIS will evaluate the totality of the evidence to determine whether the requestor has established by a preponderance of the evidence continuous physical presence for the required period of time.

To be eligible for parole in place as the noncitizen spouse of a U.S. citizen, the requestor must have entered into a valid marriage to a U.S. citizen on or before June 17, 2024, and be married on the date of filing the parole in place request (with an exception for widows and widowers as discussed below). USCIS will generally recognize a marriage as valid for purposes of this parole in place process if it is legally valid in the place where the marriage was celebrated. [ 136 ] This includes termination of any prior marriage. Although States and foreign countries may have specific laws governing jurisdiction, the place of celebration is generally where the ceremony took place or where the officiant of the ceremony was located and where the marriage certificate was issued. [ 137 ] Even if a marriage is valid in the place of celebration, there are circumstances where USCIS may not recognize a marriage as valid for purposes of this process, consistent with existing case law and policies for family-based immigrant visa petitions and other benefits. [ 138 ]

Consistent with the INA and case law, examples of the types of marital relationships that USCIS generally will not recognize for purposes of this process include, but are not limited to:

• Civil unions, domestic partnerships, or other relationships that do not confer the same legal rights and responsibilities to the parties as in a marriage recognized by a civil authority;
• Marriages that are contrary to public policy in the United States;  [ 139 ] and
• Marriages where one or both parties to the marriage are not legally free to marry or have not given consent to the marriage. [ 140 ]

A noncitizen may be eligible for parole in place if their U.S. citizen spouse is deceased, as long as a legally valid marriage was entered into on or before June 17, 2024. However, there are additional requirements separate from the parole in place process that the noncitizen must meet to be eligible for adjustment of status. A noncitizen widow(er) must have a pending or approved Form I-130 filed on their behalf at the time of the U.S. citizen spouse's death or must file a Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, within two years from the date of the U.S. citizen spouse's death. The noncitizen must not have been legally separated from the U.S. citizen spouse at the time of the U.S. citizen spouse's death and must not have since remarried. [ 141 ]

Noncitizen children of a noncitizen married to a U.S. citizen may be considered for parole in place under this process. For a child to qualify as the stepchild of a U.S. citizen, the child must have been under age 18 at the time of the marriage that created the stepparent-stepchild relationship and must have been unmarried and under the age of 21  [ 142 ] as of June 17, 2024. [ 143 ]

The stepchild does not need to demonstrate continuous physical presence since June 17, 2014. However, they must have been continuously physically present in the United States since at least June 17, 2024, through the date of filing. [ 144 ] In addition, the stepchild's noncitizen parent must have entered into a legally valid marriage with a U.S. citizen on or before June 17, 2024.

If the marriage between the noncitizen parent and U.S. citizen spouse is terminated, either through divorce or death of one or both parents, the stepchild may still be eligible for parole in place if a valid marriage was entered into on or before June 17, 2024, and the stepchild meets the above criteria. [ 145 ] An ( print page 67471) eligible stepchild may file on their own with their birth certificate and evidence of their parents' valid marriage without the participation of either parent.

Requestors must not have a disqualifying criminal history or otherwise constitute a threat to national security, public safety, or border security. [ 146 ] All pending criminal charges are disqualifying, regardless of the nature of the charges. A noncitizen may apply for parole in place once those charges are resolved.

All felony convictions, including felony driving under the influence (DUI) offenses, are disqualifying. Additionally, disqualifying criminal history includes convictions for the following offenses, regardless of whether the offense is classified as a felony. [ 147 ]

• Murder, torture, rape, or sexual abuse;
• Offenses involving firearms, explosive materials, or destructive devices;
• Offenses relating to peonage, slavery, involuntary servitude, and trafficking in persons;
• Aggravated assault;
• Offenses relating to child pornography, sexual abuse or exploitation of minors, or solicitation of minors;
• Domestic violence, stalking, child abuse, child neglect, or child abandonment; and
• Controlled substance offenses (other than simple possession of 30 grams or less of marijuana). [ 148 ]

All other criminal convictions, [ 149 ] excluding minor traffic offenses, will result in a rebuttable presumption of ineligibility for parole in place. This presumption can be rebutted on a case-by-case basis by weighing the seriousness of the conviction against mitigating factors relating to the conviction as well as other positive factors that suggest that the noncitizen merits a favorable exercise of discretion. The weight of the rebuttable presumption will be guided by the seriousness of the conviction. [ 150 ] A less serious conviction, or a conviction that does not raise public safety concerns, will result in a presumption that carries less weight and can be more easily rebutted. In adjudicating parole in place requests on an individualized, case-by-case basis, the nature and seriousness of the conviction will determine the evidence needed to overcome it. Factors that can be considered in overcoming the presumption may include, for example:

• Age of the conviction(s) (remoteness in time);
• Requestor's age at the time of the offense and conviction, including whether the requestor was a juvenile at the time of the offense;
• Sentence or penalty imposed;
• Evidence of subsequent rehabilitation;
• Nature of the conviction, including whether the conduct at issue was non-violent;
• Whether the conviction was an isolated offense when considered against the rest of the requestor's history (including consideration of whether multiple criminal convictions were on the same date and may have arisen out of the same act);
• Existence of a mental or physical condition that may have contributed to the criminal conduct;
• Requestor's particular vulnerability, including any physical or mental condition requiring treatment or care in the United States;
• Requestor's status as a victim of or witness to criminal activity, including domestic violence, or civil rights violation or labor rights violation under investigation by a labor agency, particularly if related to the criminal conduct at issue;
• Requestor's status, or that of their U.S. citizen spouse, as a current or former member of the U.S. military;
• Requestor's status as the primary caregiver for a U.S. citizen child or elderly parent or in-law;
• Evidence of requestor's good character, such as property ties, business ties, or value and service to the community;
• Length of requestor's presence in the United States;
• Requestor's status as a caregiver for an individual with disabilities, including U.S. citizen in-laws or siblings;
• Impact on other family members, including family members who are U.S. citizens and LPRs or
• Other factors USCIS considers relevant in its exercise of discretion.

Noncitizens with unexecuted final removal orders  [ 151 ] will be presumptively ineligible for parole in place under this process. However, DHS will evaluate, in the exercise of its discretion on a case-by-case basis, the facts and circumstances underlying the unexecuted final removal order in determining whether the noncitizen may overcome the presumption of ineligibility and be granted parole. Examples of information that may be relevant to DHS in its determination of whether the requestor has overcome the presumption of ineligibility include, but are not limited to: [ 152 ]

• Lack of proper notice;
• Age of the noncitizen at the time the removal order was issued;
• Ineffective assistance of counsel or being a victim of fraud in connection with immigration representation; or
• Other extenuating factors or considerations such as:

○ Inability to understand proceedings because of language barriers;

○ Status as a victim of domestic violence;

○ Other extenuating personal factors, such as requestor's limited resources ( e.g., lack of housing that would have impacted ability to appear);

• A physical or mental condition requiring care or treatment during immigration proceedings. [ 153 ]

Eligible noncitizens who are currently in removal proceedings under INA section 240, including those who have been released under INA section 236(a) on bond or their own recognizance, and those without a final removal order, may submit a request to be considered for parole in place on a case-by-case basis, taking into account the totality of the circumstances, under this process. [ 154 ] Note, however, that a noncitizen who constitutes a national security, public safety, or border security concern is ineligible for parole under this process. [ 155 ] Further, this process does not preclude DHS from, in its discretionary authority, taking enforcement actions as deemed appropriate.

As discussed in this notice, DHS's decision whether to grant parole in place to a requestor is a discretionary, case-by-case determination. Even if a requestor establishes that they have met all of the criteria for eligibility, USCIS will examine the totality of the circumstances in the individual case to determine whether the requestor merits a grant of parole in place as a matter of discretion for significant public benefit or urgent humanitarian reasons. In doing so, USCIS will weigh the positive factors against the negative factors that are present in the record. Requestors may provide evidence of positive factors to establish that they merit a favorable exercise of discretion, which may relate to, but are not limited to:

• Community ties;
• Advanced or young age;
• Length of presence in the United States;
• Status as a parent or caregiver of a U.S. citizen child or elderly parent or in-law;
• Status as a caregiver for an individual with disabilities, including U.S. citizen in-laws or siblings;
• Physical or mental condition requiring care or treatment in the United States;
• Status as a victim of or witness to a crime or civil rights violation, or labor rights violation under investigation by a labor agency;
• Impact on other family members, including family members who are U.S. citizens and LPRs;
• Status, or that of their U.S. citizen spouse, as a current or former member of the U.S. military; or
• Other positive factors about which the requestor wishes to provide information.

This is a non-exhaustive list of factors; USCIS may consider any relevant fact in the discretionary analysis.

Requestors seeking parole in place as the spouse or stepchild of a U.S. citizen must submit Form I-131F, Application for Parole in Place for Certain Noncitizen Spouses and Stepchildren of U.S. Citizens, online with the appropriate fee. To submit Form I-131F, requestors must both complete the required form fields and submit the required evidence establishing eligibility.

Requestors must submit the required evidence establishing eligibility, in compliance with Form I-131F instructions. Required documentation for noncitizen spouse requestors includes the following:

• Proof of identity, which may include:

○ Valid State or country driver's license or identification;

○ Birth certificate with photo identification;

○ Valid passport; or

○ Any government issued document bearing the requestor's name, date of birth, and photo. [ 156 ]

• Evidence establishing their continuous physical presence since at least June 17, 2014, which may include, but is not limited to:

○ Internal Revenue Service (IRS) tax transcripts listing tax information;

○ Rent receipts or utility bills;

○ Deeds, mortgage statements, or rental contracts;

○ Bank, credit card, or loan statements showing regular transactions;

○ Insurance policies;

○ Automobile license receipts, title, or registration;

○ Hospital or medical records;

○ School records (letters, report cards, etc.);

○ Attestations to the requestor's physical presence by religious entities, unions, or other civic or community organizations;

○ Official records from a religious entity confirming the requestor's participation in a religious ceremony;

○ Birth certificates for children born in the United States;

○ Money order receipts for money sent into or out of the United States; or

○ Any other document that shows that the requestor maintained continuous physical presence in the United States for the requisite time period.

• Evidence establishing a valid marriage between the noncitizen spouse and U.S. citizen:

○ Current marriage certificate showing a legally valid marriage took place on or before June 17, 2024;

○ Any divorce decree, annulment decree, or death certificate showing that the noncitizen spouse's and their U.S. citizen spouse's prior marriages were terminated (if applicable); and

○ Death certificate of U.S. citizen spouse (if applicable).

• Proof of the U.S. citizenship status of the spouse/stepparent, which must include one of the following: ( print page 67473)

○ The spouse's/stepparent's U.S. birth certificate (if the spouse has held U.S. citizenship since birth);

○ The spouse's/stepparent's Certificate of Naturalization;

○ The spouse's/stepparent's Certificate of Citizenship;

○ The spouse's/stepparent's Form FS-240, Consular Report of Birth Abroad; or

○ The biographical page of the spouse's/stepparent's current U.S. passport.

• Arrest records and court dispositions of any arrests, charges, and convictions (if applicable).

Required documentation for noncitizen stepchild requestors includes the following:

• The birth certificate of the stepchild listing the name of the noncitizen parent as a natural parent;
• Proof of identity (as listed above);
• Evidence establishing their continuous physical presence since June 17, 2024 (as listed above);
• Evidence establishing a legally valid marriage between the noncitizen stepchild's noncitizen parent and the noncitizen stepchild's U.S. citizen stepparent took place on or before June 17, 2024 (as listed above);
• Proof of the U.S. citizenship status of the spouse/stepparent (as listed above);

This parole in place process will be implemented in accordance with the lessons learned from similar processes, while building on technological advances and efficiencies in USCIS processing.

Each requestor must submit Form I-131F with the applicable filing fee, as listed on Form G-1055, Fee Schedule (currently $580). Fee waivers are not available, and requests must be submitted online. For information on creating a USCIS online account, visit www.uscis.gov/​file-online/​how-to-create-a-uscis-online-account . Each requestor, including noncitizen stepchild requestors, must file a separate Form I-131F and pay the fee individually.

After the requestor files Form I-131F, they will be required to provide biometrics to USCIS, including fingerprints, photographs, and a signature. The requestor's biometric information will be used to conduct background checks, including checks for criminal history records, verify identity, determine eligibility for requested benefits, create immigration documents ( e.g., Employment Authorization Documents), or for any other purpose authorized by the INA. [ 157 ] After the requestor files the Form I-131F online, USCIS will notify the noncitizen in writing of the time and location for a biometric services appointment. Failure to appear for biometrics submission may result in a denial of the parole in place request.

Noncitizens who meet the criteria listed in this notice may be considered for a discretionary grant of parole on a case-by-case basis. USCIS may grant parole in place to the requestor if USCIS determines that there is a significant public benefit or urgent humanitarian reason for parole and that the requestor merits a favorable exercise of discretion in the totality of the circumstances.

USCIS may prioritize the adjudication of Form I-131F for noncitizens who previously filed a Form I-601A. In establishing this parole in place process, DHS considered that certain noncitizens eligible for the parole in place process will have already prepared, filed, and paid a filing fee for a Form I-601A. USCIS has determined that prioritizing the adjudication of Forms I-131F filed by these noncitizens is justified in recognition that they availed themselves of existing processes to pursue an immigrant visa but may nonetheless wish to pursue parole in place to avoid the costs and potential separation or disruption to their family that consular processing entails. Additionally, prioritizing this population may have the downstream effect of reducing the adjudicatory resources needed for pending Forms I-601A as noncitizens who are granted parole in place through this process may subsequently apply, and be approved, for adjustment of status to that of an LPR.

Upon a grant of parole in place, the noncitizen will receive a Form I-797, Notice of Action, and a Form I-94, Arrival/Departure Record.

If granted parole in place on a case-by-case basis in the exercise of discretion, parole will generally be granted for a period of up to three years. Parole may be terminated at any time upon notice at DHS's discretion pursuant to 8 CFR 212.5(e)(2)(i) . DHS does not contemplate a re-parole process at this time.

In addition, USCIS, in its sole discretion, may impose conditions on a grant of parole with respect to any noncitizen under this process, and it may request verification of the noncitizen's compliance with any such condition at any time. [ 158 ] Violation of any condition of parole may lead to termination of the parole in accordance with 8 CFR 212.5(e) .

If parole in place is granted, the parolee will be eligible to request an Employment Authorization Document (EAD) pursuant to 8 CFR 274a.12(c)(11) , as recipients of parole under INA section 212(d)(5), 8 U.S.C. 1182(d)(5) . An individual seeking employment authorization as a parolee (category (c)(11)) may request a waiver of the Form I-765, Application for Employment Authorization, fee by submitting Form I-912, Request for Fee Waiver along with the Form I-765.

A grant of parole in place does not establish eligibility for an immigrant visa petition or a presumption that the marriage is bona fide for purposes of an immigrant visa petition or other immigration benefits. Following a grant of parole to a noncitizen, the U.S. citizen spouse or stepparent of the noncitizen is encouraged to file a Form I-130, or, in the case of certain widow(er)s, the noncitizen may file Form I-360, concurrently with the Form I-485 if they have not filed a standalone Form I-130 or Form I-360 already. For purposes of Form I-130 based on marriage, a petitioner must demonstrate that they entered into a bona fide marriage with the beneficiary, and for a Form I-130 for a stepchild, the petitioner must demonstrate they entered into a bona fide marriage to the beneficiary's noncitizen parent. There are additional requirements for Form I-360 for certain widow(er)s and their children, including filing deadlines, residence requirements, and marital status requirements. [ 159 ] A stepchild may remain eligible for an immigrant visa despite their parent's marriage to a U.S. citizen being terminated through death of either parent or divorce, so long as a bona fide stepparent-stepchild relationship continued to exist following the death or divorce.

Further, a discretionary grant of parole does not in itself establish eligibility for adjustment of status to that of an LPR under INA section 245(a), 8 U.S.C. 1255(a) . As discussed elsewhere in this notice, a grant of parole would satisfy the requirement under INA section 245(a), 8 U.S.C. 1255(a) , that the applicant has been inspected and admitted or paroled by an immigration officer. The noncitizen, however, must satisfy all other requirements for adjustment of status, including establishing that they are not inadmissible under any applicable grounds. [ 160 ] As noted, if the noncitizen is granted parole in place, the noncitizen and their spouse or stepparent would need to file Form I-130 (if not previously filed) and Form I-485. [ 161 ]

DHS generally will not use information contained in a request for parole in place under this process for the purpose of initiating immigration enforcement action against the requestor unless DHS determines, in its discretion, the requestor poses a threat to national security, public safety, or border security. [ 162 ] This process does not preclude DHS from, in its discretionary authority, taking enforcement actions as deemed appropriate, in accordance with the INA and consistent with governing policies and practices, against noncitizens who may be eligible or who have pending applications for parole under this process. Information provided under this process may be otherwise disclosed consistent with statutory authorities, obligations, and restrictions, as well as governing privacy and information-sharing policies.

As provided under INA section 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A) , parole decisions are made by the Secretary “in his discretion.” This process is being implemented as a matter of the Secretary's discretion, and the Secretary retains the sole discretion to terminate parole in place under this process at any point. It is not intended to, shall not be construed to, may not be relied upon to, and does not create any rights, privileges, benefits, substantive or procedural, enforceable by any party in any matter, civil or criminal, against the United States, its departments, agencies, or other entities, its officers or employees, or any other person.

In establishing this process, DHS considered various alternatives, as well as the impacts on resources and processing and the broader impacts on both the Federal government and State and local governments.

In exercising the Secretary's discretionary parole authority to establish a parole in place process, DHS considered various alternatives to the process.

First, DHS considered whether it could instead dedicate additional resources to the processing of pending Forms I-601A. As discussed elsewhere in this notice, the provisional unlawful presence waiver process allows certain noncitizens, including spouses of U.S. citizens, to obtain a provisional unlawful presence waiver prior to their departure from the United States to pursue an immigrant visa at a U.S. embassy or consulate abroad. It is intended to reduce the time noncitizens must spend apart from their U.S. citizen family members while increasing certainty that they will be granted a waiver of the inadmissibility ground that is triggered once they depart. [ 163 ] However, the provisional unlawful presence waiver process still entails some period of families being separated because it requires consular processing abroad after approval of the Form I-601A, often at great financial cost. It also involves some level of uncertainty and risk. The grant of a provisional waiver is not a guarantee that the waiver of inadmissibility or the immigrant visa, will ultimately be granted. [ 164 ] Likewise, a grant of parole in place does not guarantee that an application for adjustment of status will be approved, but because the application process takes place while the applicant is in the United States, noncitizens may be more likely to pursue this option. For some families, even a short-term separation from a family member, whose income or other household contributions are needed, may be untenable.

Moreover, even if, as an alternative to this process, USCIS dedicated additional resources to provisional waiver processing, doing so would not provide the previously noted significant public benefit of this process. As described in Section IV of this notice, this process furthers diplomatic relationships and foreign policy objectives. It also sets out a streamlined and less resource intensive adjudication, as compared to the more complex and resource intensive provisional waiver process which involves determining if the applicant has met their burden of proving they would be inadmissible only for unlawful presence upon departure, and that they have demonstrated extreme hardship to a qualifying relative. [ 165 ] Although USCIS has significantly increased resources devoted to the Form I-601A backlog relative to previous years, the backlog of pending applications will still take at least three years to be meaningfully reduced. Accordingly, although USCIS considered dedicating even more resources to Form I-601A processing, it concluded that doing so would not effectively address the backlog in the near term or support timely adjudications of other workloads as compared to the processing efficiencies gained through implementation of this parole in place process.

USCIS anticipates that its adjudication of parole requests under this process will be less resource-intensive than the adjudication of Form I-601A applications, given process efficiencies that USCIS has identified in adjudicating parole requests in other parole processes, and considering the complexity and resources required for the I-601A adjudication. And unlike the provisional waiver process, parole in place will not entail a period of separation from U.S. citizen family members or, alternatively, require U.S. citizen family members to depart the United States with the noncitizen. Additionally, it will obviate the need for consular processing, thereby diverting noncitizens with parole in place from DOS backlogs and reducing wait times for other noncitizens seeking visas at U.S. consulates.

While the Form I-601A process will remain critical for other categories of immigrant visa applicants who are not eligible for this process, parole in place offers a less onerous path for a subset of the I-601A-eligible population who have lived in the United States for at least 10 years, are married to U.S. citizens or are the noncitizen ( print page 67475) stepchildren of U.S. citizens, have no disqualifying factors, and merit a favorable exercise of discretion.

DHS acknowledges that there will be an increase in filings of Form I-765, as well as an increase in Form I-130 and Form I-485 filings but notes that these forms have associated filing fees that cover the cost of adjudication, and USCIS has implemented streamlined processing for certain categories of employment authorization documents, and other immigration benefit requests, including those filed by parolees. In considering all the factors, DHS determined that the benefits of implementing this process, as discussed in Section IV of this notice, outweigh any additional workload assumed by USCIS.

Second, DHS has considered alternative approaches in designing this process. Specifically, in proposing parameters for this process, DHS considered the following alternatives:

• Length of requisite physical presence: DHS considered the time period by which a requestor would likely have established deep ties to their communities in the United States in determining the period of continuous physical presence required to access this process. In making this determination, DHS considered whether a longer period (such as 15 years) or a shorter period (such as five or eight years) was more appropriate and considered estimates of the potential population for each of these time periods. Because Congress has articulated a 10-year length of continuous presence as a prerequisite for certain non-LPR noncitizens to seek lawful permanent residence through a separate process known as cancellation of removal, [ 166 ] DHS concluded that 10 years would be an appropriate length of time to require noncitizens to have been present in the United States to access this process.

DHS also considered whether the noncitizen could continue to accrue the required 10 years of continuous physical presence until the time a parole request is filed, or whether the noncitizen must have accrued the 10 years by the time the process was announced. DHS determined that requiring continuous physical presence to have accrued by a certain date provides greater predictability and certainty about the scope of the potential population, which in turn will assist DHS in determining the appropriate resources to dedicate to this process. Requiring 10 years of continuous physical presence by June 17, 2024 for noncitizen spouses of U.S. citizens also provides clarity to the public and avoids unintentionally incentivizing any irregular migration by noncitizens who might otherwise seek to enter the United States to access this process.

• Marriage to a U.S. citizen: In requiring noncitizen spouses of U.S. citizens to have a legally valid marriage on or before June 17, 2024, DHS considered whether marriages that took place after this date could nevertheless be qualifying. DHS determined that requiring marriages to have taken place by June 17, 2024 would better promote process integrity, prevent potential fraud, and provide greater certainty about the scope of the potential population.

DHS also considered whether marriage to an LPR could be a qualifying factor and determined against it because a primary goal of establishing this proposed process is to remove a barrier to an immigration benefit that may otherwise be immediately available to the noncitizen. When a noncitizen marries a U.S. citizen, they qualify as an “immediate relative” under the INA and are able to immediately apply for LPR status ( i.e., without needing to wait for an immigrant visa to become available). [ 167 ] Noncitizen spouses of LPRs who lack lawful status do not qualify as “immediate relatives” and therefore do not have an immediate path to adjustment of status (even if granted parole) because they must wait for an immigrant visa to become available before they can apply for LPR status. They also are subject to other ineligibility provisions barring adjustment of status that are not applicable to spouses of U.S. citizens. [ 168 ]

DHS considered whether the marriage must be of a specified duration ( e.g., two years) at the time of the parole in place request, particularly to address potential concerns about marriage fraud and integrity of this process. The fixed date by which the marriage must have taken place (June 17, 2024), eliminates any concern that individuals may marry solely to take advantage of this process. Moreover, USCIS will further assess the validity of the marriage for immigration purposes, including a thorough review of the bona fides of the marriage, during its consideration of the Form I-130 and Form I-485. In its consideration of these forms, USCIS will employ its standard, rigorous procedures to detect potential marriage fraud, further ensuring that fraudulent marriages will not serve as the basis for a grant of adjustment of status following access to this parole in place process. Finally, USCIS can grant adjustment of status to conditional lawful permanent residents on the basis of marriage to a U.S. citizen when the marriage is less than two years in length. Therefore, DHS determined that this process will not require that the marriage be of a specified length, though DHS requires that the marriage be legally valid in the place of celebration as of June 17, 2024.

DHS also decided to include widow(er)s who entered into a legally valid marriage with a U.S. citizen prior to June 17, 2024. DHS believes that including this population furthers the goals of the process because widow(er)s of U.S. citizens may continue to be eligible for immigrant visa petition approval and to apply to adjust status if certain requirements are met. DHS also notes that including this population is consistent with the process for family members of military service members, in which the widow(er) of a deceased U.S. citizen service member is eligible for parole in place. To be eligible for immigrant visa petition approval and be eligible to apply to adjust status, the widow(er) must have a Form I-130 filed on their behalf at the time of the U.S. citizen's death or file a Form I-360 within two years of the U.S. citizen's death. The widow(er) must also be unmarried when their immigrant visa petition is adjudicated. A widow(er)'s children may also be eligible for immigrant visa petition approval and to adjust status as the derivative child of the widow(er). For these reasons, DHS determined that, based on continued eligibility to apply for an immigration benefit and adjustment of status, spouses and stepchildren of deceased U.S. citizens could qualify for this parole process if they demonstrate the additional qualifying criteria at the time of filing an immigrant visa petition.

• Stepchildren of a U.S. citizen: Noncitizens who are granted parole under this process may have children in the United States who lack lawful status and who are unable to adjust their status without facing the same barriers that their noncitizen parents would encounter in the absence of a parole in place grant under this process.

DHS determined that providing these noncitizen stepchildren access to this process is necessary to fully meet its objective of promoting the unity and stability of families in which a U.S. citizen is married to a noncitizen who lacks lawful status. DHS estimates that 50,000 noncitizen children of ( print page 67476) noncitizen spouses who are married to U.S. citizens may be eligible to request consideration under this process. However, DHS is requiring that the noncitizen stepchild have been continuously physically present in the United States without admission or parole since at least June 17, 2024, and through the date of filing, since children may be under the age of 10 or otherwise unable to meet the 10 years required for noncitizen spouses of U.S. citizens. Additionally, as with the physical presence requirement for spouses, requiring physical presence in the United States as of a date prior to announcing this process avoids unintentionally incentivizing any irregular migration by noncitizens who might otherwise seek to enter the United States to access this process.

DHS also considered limiting this parole in place process to children whose noncitizen parent was also requesting parole. DHS determined that noncitizen stepchildren of a U.S. citizen may apply for an immigrant visa petition separately even if the noncitizen parent does not have an immigrant visa or status, and therefore should not be excluded from this process. A qualifying noncitizen stepchild of a U.S. citizen may be eligible as a beneficiary of Form I-130 based on their relationship with the U.S. citizen stepparent. This is the case even if the parents divorced or the noncitizen parent died. As such, DHS determined that noncitizen stepchildren who would otherwise be eligible as a beneficiary of Form I-130 based on a stepparent-stepchild relationship, notwithstanding divorce of the parents or death of the noncitizen parent, should also be eligible to request parole in place under this process.

• Criminal history and threats to national security, public safety or border security: DHS determined that noncitizens with serious criminal convictions will be ineligible for parole under this process. [ 169 ] DHS also determined that other criminal convictions (other than minor traffic offenses) will result in a presumption of ineligibility for parole. This presumption can be rebutted on a case-by-case basis by weighing the seriousness of the conviction against positive factors that overcome the presumption. [ 170 ] Additionally, all requestors will undergo rigorous national security and public safety vetting as part of this process. Those individuals who pose a threat to national security, public safety or border security  [ 171 ] will be disqualified from this process and, where appropriate, will be referred to law enforcement. In making these determinations, DHS considered that certain criminal convictions were likely to render a noncitizen statutorily ineligible for adjustment of status, and decided that those criminal convictions that are disqualifying for this process would generally overlap with the statutory inadmissibility grounds. In addition, DHS determined that noncitizens with pending criminal charges will be ineligible for parole in place under this process until those charges are resolved.
• Parole period length: DHS determined that a three-year grant of parole was most appropriate for this process, though it considered both shorter and longer periods of time. Other processes, such as the family reunification parole processes, provide for up to a three-year grant of parole.

After being granted parole in place, the noncitizen will generally be eligible to apply to adjust their status if they have an approved Form I-130 or their Form I-485 is accompanied by a Form I-130. The benefits of parole (including lawful presence and employment authorization) will remain in effect for the period of parole. Currently, the median processing time for an immediate relative Form I-130, when filed separately from a Form I-485, is 11.4 months, for Form I-360 (all categories) is 3.2 months, and the median processing time for a family-based Form I-485, when filed separately from a Form I-130, is 9.4 months. [ 172 ] Concurrent filing of these two forms is permitted for noncitizen spouses of U.S. citizens. Assuming that noncitizens would need time to compile evidence for these applications, save the necessary funds to pay fees, and file these applications, a three-year grant of parole will provide an appropriate amount of time to obtain adjustment of status following the grant of parole in place based on median USCIS processing times. A shorter timeframe would likely be insufficient to cover the time needed to prepare and file the adjustment application, while a longer timeframe would risk disincentivizing parolees from timely applying for adjustment of status.

In making this determination, DHS considered that parole in place is granted for certain military family members for a one-year period, which currently is subject to subsequent periods of parole in one-year increments, and is also fee exempt. Additionally, military parole in place is available for a broader category of relatives: spouses, widow(er)s, parents, and sons and daughters of U.S. citizen or LPR military members and veterans, whereas this process is open only to certain noncitizen spouses and stepchildren of U.S. citizens who may have an immediate path to adjustment of status. However, in more recent parole processes, DHS has found that a longer parole period is more efficient for the public and the agency as it reduces the need for recipients to seek re-parole. [ 173 ] A three-year parole period was therefore determined to be appropriate for certain noncitizen spouses and stepchildren of U.S. citizens to ensure that they have sufficient time to obtain adjustment of status during their parole period, especially given that re-parole for requestors granted parole under this process is not contemplated at this time.

• Removal proceedings: DHS considered whether and how a parole in place process should be available to noncitizens in pending removal proceedings under INA section 240, 8 U.S.C. 1229a . Given that some noncitizens in removal proceedings may be eligible to adjust status if granted parole, USCIS will consider requests for otherwise eligible noncitizens in pending removal proceedings who do not have a final order of removal. This includes those who have been released on bond or their own recognizance under INA section 236(a), 8 U.S.C. 1226(a) , provided they remain applicants for admission. USCIS will coordinate with ICE OPLA as it deems appropriate. A noncitizen who is considered a national security, public safety or border security concern will be generally disqualified from receiving ( print page 67477) parole in place pursuant to this process. However, given the overall objective to preserve family unity, there is an exception for border security concerns for stepchildren who were placed into proceedings after November 1, 2020, who otherwise meet the criteria for parole in place under this process. In such cases, USCIS will consider any extenuating or mitigating factors, including family unity, age at the time of placement in proceedings, or other factors that USCIS considers relevant in the exercise of discretion. The exception for border security for certain noncitizen stepchildren of a U.S. citizen is consistent with the eligibility requirement for this process as stated in section V.A. of this preamble (explaining that noncitizen stepchildren may request parole in place under this process), the requirement for continuous physical presence in the United States only covers June 17, 2024 through the date of filing.
• Prior removal orders: DHS considered whether noncitizens with unexecuted final removal orders should be eligible for this process. DHS determined that noncitizens with unexecuted final removal orders will be presumptively ineligible for parole under this process. DHS recognizes that a noncitizen may have grounds to request that an immigration judge or the BIA reopen their immigration proceedings when they are otherwise eligible for adjustment of status, and thus determined that categorical ineligibility for this parole process would be inappropriate. As a result, DHS will evaluate, in the exercise of its discretion on a case-by-case basis, the facts and circumstances underlying the unexecuted final removal order and all other mitigating factors presented in determining whether the noncitizen may overcome the rebuttable presumption of ineligibility and be granted parole in place. [ 174 ]

DHS acknowledges that granting parole in place to requestors with unexecuted removal orders could increase the volume of motions to reopen removal proceedings that EOIR will receive, and which ICE OPLA will review and respond to, as appropriate. DHS believes that a rebuttable presumption of ineligibility, and consideration of the factors listed in Section V.B. of this notice strike an appropriate balance to providing access to parole in place under this process to noncitizens who may have grounds to support the granting of parole in place. If granted parole in place, noncitizens who are prima facie eligible for adjustment of status may independently pursue reopening and dismissal of their case before EOIR to permit the filing of an adjustment of status application before USCIS.

• Form I-130: DHS considered whether the noncitizen should be required to have an approved Form I-130 prior to being granted parole in place under this process, given that it is a prerequisite for access to the FRP processes. However, DHS anticipates that many noncitizens who will benefit from this process may not yet have filed a Form I-130 because they are currently ineligible to adjust status and may not wish to pursue consular processing given the prospect of prolonged separation from their U.S. citizen family members. Requiring a previously approved Form I-130 could disqualify a significant portion of this population from this process and would be less effective in achieving the significant public benefits described in this notice, including of stabilizing and unifying families and enabling these noncitizens to contribute more fully to the U.S. economy. Moreover, immediate relatives who have been paroled are eligible to file their Form I-130 concurrently with their Form I-485. Requiring that a noncitizen file a Form I-130—either alone, or concurrently with a Form I-485—to request parole in place under this process would create significant inefficiencies and run counter to DHS' goal of reducing strain on limited government resources.
• Form I-134: DHS considered whether the noncitizen should be required to file Form I-134, Declaration of Financial Support, which USCIS uses in certain circumstances to determine whether applicants or beneficiaries of certain immigration benefit requests have sufficient financial resources or financial support to pay for expenses during their temporary stay in the United States. [ 175 ] However, DHS declined to include a requirement for submission of Form I-134 for this parole in place process. USCIS has not generally required Form I-134 for parole in place requests. For the existing military parole in place process, noncitizen family members of U.S. military service members who are granted parole in place are required to file Form I-864, Affidavit of Support Under INA Section 213A when they file for adjustment of status. Form I-864A is executed by a sponsor as evidence that the noncitizen has adequate means of financial support and are not likely at any time to become a public charge under INA section 212(a)(4)(A), 8 U.S.C 1182(a)(4)(A) . Similarly, following a grant of parole in place through this process, noncitizen spouses and noncitizen stepchildren are expected to apply to adjust status, at which time they too will be required to submit a Form I-864. Once adjustment of status is granted, the sponsorship obligations associated with the Form I-864 remain in effect until, for example, the noncitizen naturalizes or is credited with 40 quarters of work. [ 176 ]

DHS has, therefore, determined that requiring a noncitizen to submit a Form I-134 as part of their parole in place request when shortly thereafter, they will be required to submit a Form I-864 with their adjustment of status application, is unnecessarily duplicative and adds an extra burden on requestors. Moreover, requiring USCIS officers to adjudicate similar but unrelated evidence related to financial support would create inefficiencies that run counter to DHS's goals of reducing strain on limited government resources and facilitating access to adjustment of status through this process.

• Inadmissibility: DHS additionally considered requiring the requestor to demonstrate that they are not inadmissible under any ground set forth in INA section 212(a), 8 U.S.C. 1182(a) , to be granted parole under this process. This parole in place process is meant for those requestors who are otherwise eligible to adjust status. As noted elsewhere in this notice, serious criminal convictions, including certain convictions that would render the requestor inadmissible and therefore ineligible for adjustment of status, will be disqualifying for this process; other criminal convictions, as well as prior, unexecuted removal orders, will trigger a rebuttable presumption of ineligibility for this process. However, detailed consideration of grounds of inadmissibility—including whether applicable grounds can be waived—is a complex analysis undertaken during the Form I-485 adjustment of status adjudication. Requiring parole in place adjudicators to conduct the inadmissibility analysis that is normally conducted at the adjustment of status stage would be an inefficient, duplicative, and costly use of USCIS resources. Therefore, when assessing eligibility for parole in place, while DHS will consider the requestor's criminal and immigration history and any other ( print page 67478) adverse factors that could bear upon admissibility, it will not import the admissibility analysis conducted at the Form I-485 stage into the parole adjudication.

As discussed elsewhere in this notice, a grant of parole in place would satisfy the requirement under INA section 245(a), 8 U.S.C. 1255(a) , that the adjustment applicant has been “inspected and admitted or paroled” by an immigration officer. This process is meant for requestors who are otherwise eligible for adjustment of status and who merit a favorable exercise of discretion; the noncitizen, however, when applying to adjust status, must satisfy all other requirements for adjustment of status, including establishing that the requestor is not inadmissible under any applicable grounds.

DHS has considered the potential impact of this process on noncitizens applying for other immigration benefits. While there could be an impact initially on wait times for other USCIS-administered immigration programs and processes, over time, this process will assist USCIS in creating efficiencies in other workloads. For example, USCIS will be able to reduce processing times more quickly for the Form I-601A because some noncitizens who would have filed a Form I-601A and pursued consular processing would instead request parole in place and adjustment of status. DHS also considered the potential impact of this process on USCIS operations. This process will result in an increased number of individuals visiting USCIS Application Support Centers (ASC) to have their biometrics collected and will require USCIS to divert some resources to develop the technical solutions to administer this process and complete the adjudications. However, because USCIS will require all parole in place requestors to pay a fee, it is anticipated that the agency will recover fully the costs associated with this workload.

USCIS also anticipates that this process will lead to increased filings of Forms I-485 because some noncitizens who would otherwise seek lawful permanent residence via consular processing, or would have remained without status, will now seek adjustment of status. However, USCIS expects that the costs to the agency of adjudicating increased volumes of Forms I-485 will be in large part recovered by the Form I-485 fees. DHS has also determined that any additional adjudicatory costs are warranted by the significant public benefits described throughout this notice.

Finally, the process will provide needed relief to U.S. embassies and consulates, some of which have significant backlogs of noncitizens awaiting interviews for immigrant visa applications.

DHS has considered the impact of the proposed process on eligibility for Federal public benefits. Only noncitizens who are considered “qualified aliens” may access certain Federal public benefits programs. [ 177 ] “Qualified aliens” include noncitizens paroled under INA section 212(d)(5), 8 U.S.C. 1182(d)(5) , for a period of at least one year, as well as lawful permanent residents and several other categories.

However, nearly all of these benefits programs are available only to noncitizens who have been in “qualified” status for at least five years. For example, the Supplemental Nutrition Assistance Program (SNAP) generally requires noncitizens to have been in “qualified” status for five years before they may potentially receive benefits. Medicaid, Temporary Assistance for Needy Families (TANF), and the Children's Health Insurance Program (CHIP) similarly generally require five years in “qualified” status for noncitizens who entered after August 22, 1996. [ 178 ] Given that noncitizens eligible for this process are estimated on average to have lived in the United States for 23 years, [ 179 ] DHS anticipates that the majority of those who may be considered for parole in place will have entered after this date. Accordingly, most noncitizens who receive parole pursuant to this process will not be eligible to access public Federal benefits for at least five years. And, although the provision of parole in place will start the five-year waiting period prior to adjustment of status, DHS anticipates that the uptake of these public benefits would likely be curtailed by the noncitizen's access to lawful employment. Upon receipt of employment authorization and gainful employment, spouses and stepchildren of U.S. citizens may no longer need or qualify for public benefits. Additionally, noncitizens' eventual potential ability to access benefits after being granted parole through this process may well be offset by increased tax revenue and other economic benefits created by their ability to obtain lawful employment.

Unlike the analysis that most noncitizens who receive parole pursuant to this process will not be eligible to access public benefits for at least five years, Cuban and Haitian nationals who are granted parole are eligible for special “Cuban-Haitian Entrant Program” (CHEP) benefits. [ 180 ]

DHS considered the potential impact of the proposed process on State budgets, including noncitizens' access to means tested benefits, driver's licenses, and public education. As discussed elsewhere in this notice, DHS also considered the potential economic benefit to State and local governments through the provision of employment authorization to eligible parolees, and increased tax revenue to States that will result from this process. A comprehensive quantified accounting of local and State fiscal impacts specifically due to this parole in place process is not possible, in part due to the case-by-case nature of the determinations. DHS cannot predict with the available information the impact these noncitizens might have on State and local programs or the degree they will contribute to State and local budgets.

Access to means-tested benefits for eligible noncitizens varies at the State level. States can accept Federal funds to assist them with providing such benefits and have the authority to determine the eligibility of qualified noncitizens for certain designated Federal programs including TANF, Medicaid, and CHIP. Several States-including Indiana, Mississippi, Ohio, South Carolina, and Texas-deny some qualified noncitizens access to TANF even after the five-year waiting period has elapsed. While means-tested benefit costs at both the Federal and State levels could increase because of potential earlier access to qualified noncitizen status for the purpose of benefits eligibility than would otherwise be the case absent this parole in place process, for most States, any increase in benefit-based spending for these parolees will be delayed by the five-year waiting period. Upon receipt of employment authorization and gainful employment, spouses and stepchildren of U.S. citizens may no ( print page 67479) longer need or qualify for public benefits. Additionally, noncitizens' eventual potential ability to access benefits after being granted parole through this process may well be offset by increased tax revenue and other economic benefits created by their ability to obtain lawful employment.

The extent to which this process will impact States in the short term because of noncitizens granted parole gaining access to driver's licenses will depend on State policy. Although 19 States, the District of Columbia, and Puerto Rico already provide noncitizens access to driver's licenses regardless of immigration status, other States make access to driver's licenses contingent on lawful immigration status. However, the REAL ID Act of 2005  [ 181 ] and its implementing regulations exclude parolees from the list of categories of individuals eligible for REAL ID-compliant licenses. Therefore, whether noncitizens who are granted parole under this process can receive driver's licenses will depend upon States' willingness to continue to issue non-REAL ID compliant licenses to this population, either because they issue driver's licenses to noncitizens regardless of their immigration status or because they contemplate issuing licenses to noncitizens in immigration statuses beyond those included in the REAL ID Act. DHS acknowledges that the provision of parole in place may enable noncitizens to pursue adjustment of status sooner than they otherwise would, and in States where a noncitizen would not have access to a driver's license before becoming an LPR, this process would render them eligible to apply for a driver's license sooner. However, many States may also charge fees for driver's licenses, and therefore the cost to States caused by additional noncitizens becoming eligible for driver's licenses following a grant of parole in place under this process may be mitigated.

DHS also considered the impact of this process on State education costs. DHS recognizes that undocumented noncitizen students receive K-12 education that is publicly funded. Although the provision of parole to some of these undocumented noncitizen students may result in some indirect fiscal effects on State and local governments, the direction of the effect is dependent on multiple factors. Given the criteria requiring stepchildren of U.S. citizens to be continuously physically present in the United States since at least June 17, 2024, these noncitizens would already be present in the United States and likely attending public school even in the absence of this process.

While some States may allow noncitizens with parole to qualify for in-state tuition rates at public universities, which may not be available to similarly situated noncitizens without parole, the costs to the States will depend on choices they make and will be location-specific. The fiscal impact is therefore difficult to quantify, let alone predict. However, any cost associated with additional access to in-state tuition rates at public universities may be offset by the further pursuit of education and the resultant economic benefits. The provision of parole and employment authorization may motivate recipients to continue their education, pursue post-secondary and advanced degrees, and seek additional vocational training, which ultimately provides greater opportunities, financial stability, and disposable income for themselves and their families. [ 182 ] This in turn benefits their communities at large and increases the potential economic benefit to State and local governments.

As described throughout this notice, this process will provide multiple significant benefits to the U.S. public. DHS has identified and considered the interests of the parties affected by establishment of this process and has, to the extent possible, determined that the significant public benefits of the case-by-case parole of noncitizens under this process to the United States outweigh the anticipated costs to Federal and State governments alike. Additionally, given that the population eligible to request parole in place under this process is limited to those who have been continuously physically present in the United States since June 17, 2014, or in the case of stepchildren of U.S. citizens, since at least June 17, 2024, DHS does not believe this process will meaningfully affect or create incentives for noncitizens to enter the United States.

According to DHS analysis from the Office of Homeland Security Statistics, this process could benefit an estimated 500,000 unauthorized noncitizen spouses of U.S. citizens as well as an estimated 50,000 unauthorized noncitizen stepchildren of U.S. citizens. The estimated 500,000 unauthorized noncitizen spouses is the average of the estimated interval of 300,000 to 700,000 potential noncitizen spouses of U.S. citizens. To provide a more informed analysis when estimating costs, benefits, and transfers of this process, DHS assumes two scenarios: one designates “ scenario 350K” as a low population estimate scenario that includes 300,000 spouses and 50,000 stepchildren, and the other designates “ scenario 750K” as a high population estimate that includes 700,000 spouses and 50,000 stepchildren. [ 183 ] For the final estimated numbers DHS takes the point estimate, that is the average between the low estimate and high estimate scenarios.

Using data on the estimated unauthorized immigrant population living in the United States, [ 184 ] DHS first estimates the broader unauthorized population present in the United States for at least 10 years. DHS then separates the unauthorized populations into two categories, making assumptions on the population that is PWAP (previously known as entered without inspection or EWI) and the population that overstayed their period of admission. The PWAP population is the population of interest under this process. Once the PWAP population in the United States is estimated, DHS filters this population by the proportion of the unauthorized population married to a U.S. citizen, [ 185 ] which yields the estimated 500,000 unauthorized noncitizen spouses present in the United States for at least 10 years. To arrive at the estimated number of 50,000 stepchildren, DHS uses fertility data to assume a rate of children per marriage as well as assumptions on the average household composition of U.S. citizen children and unauthorized stepchildren. 186

DHS estimates that this process would result in increased earnings for the population that gains work authorization by removing the “wage penalty” that affects undocumented individuals in the United States. Determining the magnitude of this increase in earnings requires identifying the percentage of the population that applies for parole that is in the labor force, the size of the wage penalty, and the wages of this population in the baseline.

First, DHS assumes the labor participation rate of this population is similar to that of foreign-born workers. Therefore, DHS estimates that approximately 67 percent of this population are currently in the informal labor force, [ 187 ] or 234,500 individuals for scenario 350K, and 502,500 individuals for scenario 750K. DHS assumes these estimates remain constant with this process, i.e., the same percentage in this population would transition to or chose to participate in the formal labor market once authorized under this process.

DHS recognizes that providing employment authorization could induce additional entry into the labor force. For example, Pope (2016) found DACA increased the likelihood of a sample of noncitizens in DACA-eligible age groups working by 3.7-4.8 percentage points and their number of hours worked per week by 0.9-1.7 hours, stemming from an increase in labor force participation and a decrease in unemployment. [ 188 ] Pope also notes that because the non-citizen sample analyzed was comprised of nearly 40% authorized immigrants, the true effect would be approximately 1.6 times larger (5.9-7.7 percentage points). Additional research from Pan (2012)  [ 189 ] —studying the effects of the Immigration Reform and Control Act of 1986—and Orrenius and Zavodny (2015)  [ 190 ] —studying the effects of Temporary Protected Status—provides more granular detail that, following receipt of lawful status, wage increases (discussed below) may be clustered among men and higher employment rates may be clustered among women. However, DHS assumes no increase in employment resulting from this process. As a result, the assumption of a static employment rate could result in an underestimate of the total impact.

Second, there is an extensive literature showing that documented immigrants tend to earn higher wages than those who are undocumented. This difference is known as the wage penalty, [ 191 ] which Borjas and Cassidy (2019) define as the wage difference between observationally-equivalent documented and undocumented immigrants. [ 192 ] In order to quantify the marginal impact of providing employment authorization on earnings for undocumented spouses, DHS consulted several studies. Table 1 shows the studies and the various wage penalty percentages from their findings.

Borjas and Cassidy (2019) examine the wage differential between informal and formal work for immigrant populations finding that the wage earned as a documented noncitizen could be, on average, 4 to 6 percent higher than the wage of an individual working as an undocumented noncitizen. [ 193 ]

Ortega and Hsin (2022) find that the wage penalty between documented and undocumented workers in the period 2010-2012 is 12 percent in occupations with entry barriers (30.1% of undocumented workers) and 2 percent in occupations without entry barriers (69.9% of undocumented workers) when accounting for observable ( print page 67481) characteristics (similar education and skills) other than occupation. [ 194 ] In aggregate, the wage penalty is 5%.

Albert (2021) uses data from 1994-2016 to estimate that the wage gap—conditional on observable characteristics—between undocumented and document immigrants is 8 percent. [ 195 ]

Kossoudji & Cobb-Clark (1998) used the change in policy caused by the Immigration Reform and Control Act of 1986 (IRCA)—which authorized the granting of lawful status to approximately 1.7 million long‐term unauthorized workers—to analyze the question of whether and how legal status influences wages. [ 196 ] The policy effectively brought unauthorized immigrants out of the informal labor market and improved their labor market opportunities. Their analysis of wages used panel data for a sample of Mexican and Central American legalized men which provided evidence that wage determinants are structurally different after legal status was extended to this group. The analysis suggests that upon arrival in the U.S. labor market, unauthorized men's wages would have been 14 percent higher if they had been authorized workers; if they had been authorized for all their U.S. working lives, wages in 1992 would be 24 percent higher than actual wages. [ 197 ]

Third, estimating baseline wages cannot be done through use of traditional sources for wages, such as the Department of Labor Bureau of Labor Statistics' (BLS) data, as they do not provide wage estimates for undocumented workers. Consequently, DHS considered several studies to get a range of estimates for earnings of undocumented workers.

A 2022 report by the Center for Migration Studies states that “mean and median annual wages of Hispanic undocumented immigrants who are employed (ages 16 and above) are $28,252 and $25,000, respectively.”  [ 198 ] Given that two-thirds of the estimated undocumented immigrant population is Hispanic, [ 199 ] DHS considers the mean wage of $28,252, which we adjust up using the Employment Cost Index (wages and salaries for private industry workers) to $33,302 (2023 dollars), a reasonable lower estimate for this population's earnings. [ 200 ]

In other regulations, USCIS has used the 10th percentile wage as a proxy for low-paying or entry-level jobs weighted to include benefits for full compensation. [ 201 ] The 10th percentile wage is not specific to undocumented workers; however, it is an example of a lower wage that we have used in other rules. DHS presents wage data from BLS National Occupational Employment and Wage Estimates for an unweighted, 10th percentile wage estimate for all occupations to provide another point of comparison. [ 202 ] DHS takes the hourly wage of $13.97 and adjusts it by 1.45 to account for worker benefits to get the average total rate of compensation as $20.26 per hour. [ 203 ] This wage estimate adjusted by 1.45 is appropriate, even if workers are in the informal labor market and do not receive similar benefits. It is appropriate in this analysis because the 10th percentile of full compensation is being estimated based on the 10th percentile wage estimate in order to serve as a plausible benchmark for this population's average earnings.

Assuming approximately 1,784 hours worked per year (34.3 average weekly hours worked as of 2023, multiplied by 52 weeks in a year), [ 204 ] someone earning compensation of $20.26 per hour would earn approximately $36,136 annually. DHS does not rule out the possibility that this population might earn higher wages than shown in this analysis on average, but we believe that these earnings represent a reasonable estimate of the range of incomes that undocumented spouses may be able to earn.

In Table 2, we apply the various wage penalty estimates from Table 1 to the wage estimates for unauthorized workers discussed above to estimate a range of increase in potential income—from 4 percent to 24 percent—as a result of obtaining parole. We also include a simple arithmetic mean of the central estimate of the three articles used to generate these estimates, 9%, to illustrate a potential central estimate of the wage penalty. [ 205 ] The result is a range of estimates for the increased marginal earnings due to work authorization. DHS estimates that receiving employment authorization can increase an immigrant's earnings by about $1,332 to $8,672 per year.

Table 2—Estimated Increased Marginal Earnings per Worker and per Year

[2023 Dollars]

Wage penalty (%) Scenarios for earnings without work authorization $33,302  $36,135  4 $1,332 $1,445 5 1,665 1,807 6 1,998 2,168 8 2,664 2,891 9 2,997 3,252 14 4,662 5,059 24 7,992 8,672 Estimated marginal earning per worker calculated for each scenario by multiplying the wage penalty by the earnings without work authorization, for example: $33,302 × 4% = $1,332.  CMS: . Adjusted 2019 estimate using Employment Cost Index to 2023 dollars.  10% Percentile: . Adjusted to include benefits as reported by BLS, .

DHS assumes that the estimated 234,500 in scenario 350K and 502,500 individuals in scenario 750K are currently in the informal labor force and would receive parole as well as employment authorization—increasing their earnings—as a result of this process. Consistent with standard practice in regulatory impact analyses, as well as current evidence in the labor market, [ 206 ] DHS assumes full employment (that is, that all workers looking for work can find employment in the labor market); accordingly, there is no need to consider the extent to which the labor of affected individuals substitutes for the labor of workers already employed in the economy. For further discussion of the literature on labor substitution and immigration, see “Labor Market Impacts” below.

The increased gross annual earnings from the process are estimated by multiplying the marginal increased earnings per worker due to employment authorization (Table 2) by the estimated labor force participation population numbers under scenario 350K (234,500) and 750K (502,500), respectively. Table 3 presents these estimates.

Table 3—Total Gross Annual Marginal Earnings Gained

[2023 Dollars]

Wage penalty (%)	Earnings $33,302		Earnings $36,135
	Scenario 350k	Scenario 750k	Scenario 350k	Scenario 750k
4	$312,372,760	$669,370,200	$338,946,300	$726,313,500
5	390,465,950	836,712,750	423,682,875	907,891,875
6	468,559,140	1,004,055,300	508,419,450	1,089,470,250
8	624,745,520	1,338,740,400	677,892,600	1,452,627,000
9	702,838,710	1,506,082,950	762,629,175	1,634,205,375
14	1,093,304,660	2,342,795,700	1,186,312,050	2,542,097,250
24	1,874,236,560	4,016,221,200	2,033,677,800	4,357,881,000
Total annual earnings is calculated by taking the benefits estimated from work authorization in Table 2 for each scenario and multiplying it by the population participating in the labor market. For example: under the 350k scenario where the relevant population are earning, on average, $33,302/year and the wage penalty is 4%, then the benefit of work authorization is $1,332/year; when multiplied by the working population of 234,500, the total annual increase of gaining work authorization for this population is $312 million/year.

Using the 9% wage penalty as the preferred measure of central tendency, it implies increased earnings of $0.70 billion to $1.63 billion in additional earnings per year. To produce a point estimate, DHS takes the average across the two scenarios (using the 9% wage penalty) to arrive at $1.15 billion (rounded), as its preferred estimate of the gross annual increased earnings resulting from this process.

As noted above, DHS estimates an additional $1.15 billion in annual earnings stemming from this process. [ 207 ] As noted in Ortega & Hsin (2022), these short-term increased earnings are explained by group-specific occupational barriers associated with a lack of legal status that cause a misallocation of talent and human capital. The study found that providing legal status to these workers increases the productivity of these workers, and therefore represent net economic gains.

To the extent that the long-term increase in productivity is not fully captured by the increase in earnings—for example, due to employer labor market power—this earnings estimate understates the true economic gains. [ 208 ] And as previously noted, to the extent that this process leads to additional labor force participation—as per Pope (2016), Pan (2012), and Orrenius and Zavodny (2015)—the earnings estimate may also understate the benefit of this process. The total increase in earnings will also be understated if individuals, after gaining lawful status, switch from industries where they currently face lower wage penalties to industries where they would currently face higher wage penalties. In the Ortega and Hsin (2022) estimation of the effects of grants of lawful status on GDP, the direct wage effect is less than a fifth of the total increase in earnings, meaning the true effect of lawful status on earnings may be five times higher than the wage penalty estimate. In addition, Ortega & Hsin note that the long-term productivity gain may be higher because the affected population anticipates labor market barriers in occupations with high skill requirements, leading to under-investment in human capital. To the extent the process leads to closer-to-optimal investment in human capital (in a manner not reflected in the literature used to estimate the wage penalty), the long-term benefits of this process could be higher.

Beyond earnings, the process's immediate benefits include a sense of security and belonging for the affected population, their families, and communities due to the program offering a less burdensome path to adjustment of status. The population that could be eligible for parole in place through this process subsequently could apply for adjustment of status to that of an LPR and, if granted, would gain the freedom and ability to travel internationally.

Noncitizens in the population granted parole in place under this process would benefit from being able to earn lawful wages through participation in the labor market (less the value of their leisure time prior to this process) including expanded employment options not previously available to them. Noncitizens who work would contribute to Federal, State, and local taxes and would benefit from the Social Security system in retirement. Additionally, and generally, some noncitizens could benefit from eventually having access to public assistance programs only available to qualified noncitizens and U.S. citizens if a need for such assistance arises and if they are not already a beneficiary of assistance through their U.S. citizen spouse or parent. [ 209 ]

Research provides a variety of more specific evidence on the benefits of gaining lawful status for populations that have resided in the United States for periods of time without lawful status. For example, Patler and Pirtle (2018) find that reports of current psychological wellness increase for DACA recipients. [ 210 ] Hasager (2024) finds that in conditions where women's resident status is contingent on remaining married to their husbands, grants of legal status (in this case, asylum) to such women decreases their risk of being victims of violence. [ 211 ]

Research also indicates that benefits can spillover to additional individuals. For example, Cascio, Cornell, and Lewis (2024) found that the Immigration Reform and Control Act of 1986 led to higher birthweights among mothers who gained legal status. [ 212 ] This effect arose immediately after applications opened—long before the affected women would have been able to become eligible for Medicaid—indicating that the causality stemmed from factors other than improved access to prenatal care, such as higher family income and reductions in stress that come from gaining legal status. As Cascio, Cornell, and Lewis (2024) note, birthweight is a predictor of later school achievement  [ 213 ] as well as adult educational attainment rates, IQ, health, and labor market outcomes. [ 214 ]

The costs to the population affected by this process will include the various application costs (one person, parent or stepchild, per application). These costs include opportunity costs of time (OCT) of requestors and, if applicable, their representatives for filing Forms I-131F, I-765, I-130, and I-485 (OCT = [value of time based on relevant wages] * [estimated time burden to complete and submit required forms]). Requestors would also be responsible for any travel costs associated with a required biometrics collection appointment at a USCIS ASC.

The process to request parole in place requires an individual to file Form I-131F. Currently, Form I-131F has an estimated time burden of 1.1667 hours with a filing fee of $580. [ 215 ] To request employment authorization, an individual is required to file Form I-765, with a time burden of 4.317 hours, [ 216 ] and a fee of $470 if filing ( print page 67484) online. [ 217 ] Parolees who later choose to apply for adjustment of status must file Form I-485, with a time burden of 6.987 hours  [ 218 ] and submit a fee of $1,440. [ 219 ] In addition to the Form I-485, U.S. citizen spouses or parents must file Form I-130, with a time burden of 1.817 hours  [ 220 ] and a fee of $625 if filed online. [ 221 ] DHS assumes that if given the option, requestors will submit the required forms online. For all forms together, the total time burden is 14.2877 hours.

DHS calculates the costs of applying under this process as follows. Under the two earnings scenarios previously discussed, we convert the annual earnings of $33,302 and $36,135 to per hour earnings, arriving at an estimated $18.67 and $20.26 per hour, respectively. (DHS herein refers to the estimated $18.67 hourly wage as “earnings scenario 1” and the estimated $20.26 hourly wage as “earnings scenario 2.”) We do not include any wage penalty adjustments for application costs purposes as the population is not authorized at the time of application, so their OCT is their estimated informal labor earnings. For applications that are prepared by a representative, DHS estimates an hourly total compensation rate of $123.02 (rounded) using the national average hourly wage for attorneys, adjusted to include benefits, as a reasonable proxy of the opportunity cost of time. [ 222 ] Using the behavior of I-601A filers as a best-approximation for the data, DHS estimates that 81 percent of applicants could seek assistance from a lawyer or an accredited representative and 19 percent would not. [ 223 ]

Biometrics collection occurs at a designated USCIS ASC. While travel times and distances vary, DHS estimates that the average roundtrip distance to an ASC is 50 miles  [ 224 ] and travel takes about 2.5 hours on average to complete a roundtrip. [ 225 ] Furthermore, DHS estimates that a requestor spends an average of 1 hour and 10 minutes (1.17 hours) at an ASC to submit biometrics, [ 226 ] adding up to a total biometrics collection-related time burden of 3.7 hours per requestor. The per requestor biometrics travel costs are approximately $99.77 under earnings scenario 1, and $105.60 under earnings scenario 2. [ 227 ]

The costs are calculated under the two earnings scenarios and the two population scenarios, scenario 350K and scenario 750K. For scenario 350K, we estimate that approximately 66,500 individuals would not use a representative to file the required forms and 283,500 would use a representative. For scenario 750K, we estimate 142,500 individuals would not use a representative and 607,500 would use a representative. Table 4 presents the total cost estimates, including total time burden for filing required forms, per hour OCT estimates for requestors and representatives, population estimates, and biometrics travel costs estimates. To arrive at a point estimate, DHS takes the average across each population scenario and each earning scenario. As a result, the point estimate is approximately $868,583,362 ($0.87 billion).

Table 4—Total Program Application Costs

[2023 Dollars]

Costs	Earnings $33,302 ($18.67/hour)		Earnings $36,135 ($20.26/hour)
	Scenario 350k	Scenario 750k	Scenario 350k	Scenario 750k
Forms	$516,039,219	$1,105,798,327	$517,549,929	$1,109,035,563
Biometrics	34,919,115	74,826,675	36,961,470	79,203,150
Total	550,958,334	1,180,625,002	554,511,399	1,188,238,713
For example, forms costs under scenario 350k and $18.67/hour OCT, are calculated as the time burden for all forms, 14.2877 hours, multiplied by the applicant population of 66,500 and their OCT, plus the total forms time burden, 14.2877 hours, multiplied by the population using a representative, 283,500, and their respective OCT. This is (14.2877 * 66,500 * $18.67) + (14.2877 * 283,500 * $123.02) = $17,738,965 + $498,300,254 = $516,039,219 (rounded). Biometrics costs are approximately $99.77 * 350,000 = $34,919,115. Numbers are slightly off due to rounding.

All the fees paid for the required forms for this process represent a transfer to the federal government (see Table 5). As previously noted, an individual must file Form I-131F to request parole in place and pay a (online) filing fee of $580; file Form I-765 to request work authorization and pay a (online) filing fee of $470 and file Form I-485 to apply for adjustment of status and pay a (mail-in) fee of $1,440. Concurrently with Form I-485, U.S. citizen spouses or parents must file Form I-130, with (online) fee of $625. ( print page 67485) If the option exists to submit a form online, DHS assumes that requestors would take advantage of this option to save costs and hence we use the online form submission fees to calculate the fee transfers. Any fee waivers granted for filing forms would reduce transfers from the affected population to USCIS. [ 228 ]

Table 5—Form Fee Transfers to the Federal Government

[2023 Dollars]

Forms	Fee	Scenario 350K	Scenario 750K
I-131F	$580	$203,000,000	$435,000,000
I-765	470	164,500,000	352,500,000
I-130	625	218,750,000	468,750,000
I-485	1,440	504,000,000	1,080,000,000
Total	3,115	1,090,250,000	2,336,250,000
The point estimate is the average of the two scenarios, $1,713,250,000.

Increased earnings would result in increased tax revenue to different levels of government. For Federal income taxes, DHS presents an estimate using the simplified assumption that all individuals have marginal earnings taxed at a 12% rate. This is the tax rate that DHS believes would be applicable to such earnings for most individuals. [ 229 ] The gross earnings estimates are multiplied by 12% to yield the results in Table 6.

Table 6—Total Federal Income Tax Transfers at 12% Rate

[2023 Dollars]

Wage penalty (%)	Earnings $33,302		Earnings $36,135
	Scenario 350K	Scenario 750K	Scenario 350K	Scenario 750K
4	$37,484,731	$80,324,424	$40,673,556	$87,157,620
5	46,855,914	100,405,530	50,841,945	108,947,025
6	56,227,097	120,486,636	61,010,334	130,736,430
8	74,969,462	160,648,848	81,347,112	174,315,240
9	84,340,645	180,729,954	91,515,501	196,104,645
14	131,196,559	281,135,484	142,357,446	305,051,670
24	224,908,387	481,946,544	244,041,336	522,945,720
The point estimate is the average across the 9% row, which is $138,172,686.

Following the same approach to calculating the point estimate as was done previously produces an estimate of approximately $138 million in additional annual Federal income tax revenue as a result of the process.

It is difficult to quantify State tax transfers because taxation rules imposed by different levels of government vary widely. [ 230 ] For that reason, DHS is not able to monetize State income tax revenue increases that will occur as a result of this process, but DHS anticipates that at least some states will see tax revenue increases.

DHS is also able to estimate the increase in transfer payments to Federal employment tax programs, namely Medicare and Social Security, which have a combined payroll tax rate of 7.65 percent (6.2 percent and 1.45 percent, respectively). [ 231 ] With both the employee and employer paying their respective portion of Medicare and Social Security taxes, the total estimated increase in tax transfer payments from employees and employers to Medicare and Social Security is 15.3 percent. DHS takes this rate and multiplies it by the total marginal increase in pre-tax, gross, income earnings from Table 3 to estimate the increase in employment tax transfers resulting from work authorization. Table 7 presents these estimates.

Table 7—Total Federal Payroll Tax Transfers at 15.3% Rate

[2023 Dollars]

Wage penalty (%)	Earnings $33,302		Earnings $36,135
	Scenario 350K	Scenario 750K	Scenario 350K	Scenario 750K
4	$47,793,032	$102,413,641	$51,858,784	$111,125,966
5	59,741,290	128,017,051	64,823,480	138,907,457
6	71,689,548	153,620,461	77,788,176	166,688,948
( print page 67486)
8	95,586,065	204,827,281	103,717,568	222,251,931
9	107,534,323	230,430,691	116,682,264	250,033,422
14	167,275,613	358,447,742	181,505,744	388,940,879
24	286,758,194	614,481,844	311,152,703	666,755,793
The point estimate is the average across the 9% row, which is $176,170,175.

Following the same approach to calculating the point estimate as was done previously, this produces an estimate of approximately $176 million in additional annual Federal payroll tax revenue as a result of the process, half from employers and half from the employed population.

Additionally, DHS has considered the impact of the process on eligibility for Federal public benefits. Only noncitizens who are considered “qualified aliens” may access certain Federal public benefits programs. “Qualified aliens” include noncitizens paroled under INA section 212(d)(5) for a period of at least one year. However, nearly all benefits programs are available only to noncitizens who have been in “qualified” status for at least five years. For example, the Supplemental Nutrition Assistance Program (SNAP) generally requires noncitizens to have been in “qualified” status for five years before they can receive benefits. Similarly, Medicaid, Temporary Assistance for Needy Families (TANF), and the Children's Health Insurance Program (CHIP) generally require five years in “qualified” status for noncitizens who entered the United States after August 22, 1996. Given that noncitizens eligible for this process are estimated on average to have lived in the United States for 23 years, DHS anticipates that the majority of those who may be considered for parole in place will have entered after this date. Accordingly, most noncitizens who receive parole pursuant to this process will not be eligible to access public Federal benefits for at least five years. Beyond five years, DHS is not able to monetize the degree of additional outlays from Federal public benefit programs.

The potential fiscal impacts of this process on State and local governments would vary based on a range of factors, such as the social and economic characteristics of the population within a particular jurisdiction at a particular time (or over a particular period), including a parolee's age, educational attainment, income, and level of work-related skill as well as the number of dependents in their families. Fiscal effects would also vary significantly depending on local rules governing eligibility for public benefits. Under this process, additional earnings have the effect of increasing tax revenues. With regard to drawing on public assistance programs, the effects would be uncertain and depend on a range of factors, including personal circumstances and any State and local policies' eligibility criteria.

Compared to the baseline, there are multiple reasons to believe that any burden on State and local fiscal resources caused by the process are unlikely to be significant, and further that the rule may have a positive net effect on their fiscal resources. In the baseline, the vast majority of this population would remain in the country, but without the additional measure of security, employment authorization, and lawful presence promoted by this process. In addition, because State and local governments are already expending resources on public goods for the population gaining lawful status due to this process—for example, public K-12 education—the marginal effect of gaining lawful status on State and local public expenditures is likely to be small. By contrast, the increased earnings stemming from lawful status clearly increase tax revenues relative to baseline (State and local income tax revenues; higher earnings leading to higher spending, and therefore higher sales tax revenues; higher earnings leading to higher spending on property, and therefore higher property tax revenues), albeit one that DHS cannot fully monetize.

In the long term, DHS expects State and local governments to continue to choose how to finance public goods, set tax structures and rates, allocate public resources, and set eligibilities for various public benefit programs, and to adjust these approaches based on the evolving conditions of their respective populations. DHS acknowledges that though this process may result in some indirect fiscal effects on State and local governments, such effects would be extremely challenging to quantify fully and would vary based on a range of factors, including policy choices made by such governments, and may very well be offset by increases in tax revenue and economic productivity that are equally challenging to quantify.

The labor market impacts of increased immigration are largely not relevant to the analysis of this process because it applies to individuals who have resided in the United States for more than 10 years. Such individuals would likely continue to reside in the United States with or without this process. Nevertheless, for completeness and to the extent relevant, DHS has included discussion of the effects of increased immigration on native-born workers' employment and earnings.

Although the estimated population is small relative to the total U.S. and individual State labor forces, DHS recognizes that, in general, any potential increase in worker supply may affect wages and, in turn, the welfare of other workers and employers. However, the effects are not obvious or straightforward as changes in wages depend on many factors and various market forces, such as the type of occupation and industry, geographic market locations, employer preferences, worker preferences, worker skills, experience, and education levels, and overall economic conditions. For example, in a tight labor market, certain industries' labor demand might outpace labor supply, such as in healthcare, food services, and software development sectors. BLS projects that home health and personal care aide occupations will grow by about 34 percent over the next 10 years, cooks in restaurants by about 23 percent, and software development occupations by about 22 percent. [ 232 ] In ( print page 67487) growing industries or sectors such as these, holding everything else constant, any increases in the labor supply might not be enough to temporarily satisfy labor demand. As a result, employers might offer higher wages to attract workers. The opposite could happen in a slack labor market for industries or sectors where labor supply is greater than labor demand due to these industries not growing and/or too many workers entering theses industry relative to labor demand.

DHS also notes the possibility of positive dynamic effects from employing the population relevant to this process. Hiring persons from this population might permit businesses to grow and thus have positive, rather than negative, effects on other workers, including U.S. citizens. DHS cannot predict the degree to which this population of interest is substituted for other workers in the U.S. economy since this depends on factors such as industry characteristics as described above as well as on the hiring practices and preferences of employers, which depend on many factors, such as worker skill levels, experience levels, education levels, training needs, and labor market regulations, among others.

Assuming this population of interest would remain in the United States even without this process, there is the possibility that unauthorized noncitizens looking for work without authorization may be exploited, and employers may pay substandard wages, which in turn could potentially depress wages for some native and authorized noncitizen workers. By reducing this possibility, this process may help to protect U.S. workers and employers against the possible effects of unauthorized labor.

Generally, the benefits of facilitating access to employment authorization for this population outweigh potential costs to American workers or to the U.S. economy. A 2017 National Academies of Sciences, Engineering, and Medicine (NAS) publication concludes that providing legal status to unauthorized migrants does not harm U.S.-born and other immigrant workers in the longer term, as overall the impact of immigration on wages is very small. [ 233 ]

Research has found little evidence that immigration significantly affects the overall employment rate of native-born workers. The 2017 NAS publication synthesizes the then-current peer-reviewed literature on the effects of immigration along with empirical findings from various publications. [ 234 ] With respect to wages, in particular, the 2017 NAS Report described recent research showing that, when measured over a period of more than 10 years, the impact of immigration on the wages of natives overall is very small. [ 235 ] However, the NAS Report described research finding that immigration reduces the number of hours worked by native teens (but not their employment rate). Moreover, as with wage impacts, there is some evidence that recent immigrants reduce the employment rate of prior immigrants, suggesting a higher degree of substitutability between new and prior immigrants than between new immigrants and natives. [ 236 ]

Further, the characteristics of local economies matter with respect to wage and employment effects. For instance, the impacts to local labor markets can vary based on whether such market economies are experiencing growth, stagnation, or decline. On average, immigrants tend to locate to areas with relatively high labor demand or low unemployment levels where worker competition for available jobs is low. [ 237 ] This dissipates short-term localized labor supply shock effects and increases the efficiency of labor markets. [ 238 ]

The 2017 NAS Report also discusses the economic impacts of immigration and considers effects beyond labor market impacts. Similar to citizens, immigrants also pay taxes; stimulate the economy by consuming goods, services, and entertainment; engage in the real estate market; and take part in domestic tourism. Such activities contribute to further growth of the economy and create additional jobs and opportunities for both citizen and noncitizen populations. [ 239 ]

More recent evidence provides a stronger evidentiary basis that immigration increases the employment rate of native-born workers. Empirical evidence from Peri, Rury, and Wiltshire (2024) of the effect of Puerto Ricans who were displaced to Orlando following Hurricane Maria found “evidence that the migration event induced by Hurricane Maria caused employment growth in Orlando, in aggregate and also within sectors most likely to be affected by labor supply and demand shocks.”  [ 240 ] Peri, Rury, and Wiltshire (2024) found that this held for non-Hispanic workers and less-educated workers as well. Clemens and Hunt (2019) as well as Peri and Yasenov (2019) found evidence that previous approaches to examining the labor market effects of the Mariel Boatlift were methodologically flawed, concluding that—when properly controlled—no significant difference in labor market outcomes could be discerned. [ 241 ]

More comprehensively, Caiumi and Peri (2024) extends and improves upon a series of previous influential articles in the field that estimated how the supply of immigrant workers affected native wages in the U.S. by extending the years studies (through 2022) and using improved identification methods. [ 242 ] They find that the effect of immigration at every skill level “on natives' employment-population ratio is positive, significant and between 0.05% and 0.095%, in response to a 1% increase in immigrant employment.” On the wage side, Caiumi and Peri (2024) estimate that the “average increase of native wage by 0.01% to 0.02% for each 1% growth of immigrant share can be fully due to shifts of natives into better-paying types of occupations in response to immigration.” These estimates imply that the 2000 to 2019 immigrant flows increased the wages of native workers with a high school degree or less by 1.7% to 2.6%, had no significant wage effect on native workers with a college degree, and in aggregate increased wages for all workers by an average of 0.5% to 0.8%; regarding employment in this period, this implies that these immigrant flows increased natives' employment rate by 2.4%. Similar, but smaller, estimates are generated for the 2019-2022 period.

Accounting Statement

Category	Primary estimate	Dollar year	Discount rate	Time horizon
Annualized monetized benefits	$1.15 billion	2023	N/A	Annual.
Annualized quantified, but non-monetized benefits	N/A	N/A	N/A	N/A.
Unquantified benefits	• Increased sense of security and belonging, and psychological wellness • Freedom and ability to travel internationally and access travel documents • Access to a college education • Reduced risk of being subject to violence	N/A	N/A	N/A.
	• Higher birth weights for children of population, and consequent lifetime benefits to those children • Preserve and more effectively use limited resources of the Federal government.
Total monetized costs	$0.87 billion	2023	N/A	Year 1.
Total quantified, but non-monetized costs	N/A
Unquantified costs
Year 1 monetized Federal budgetary transfers	$2.03 billion	2023	N/A	Year 1.
Year 2+ annualized monetized Federal budgetary transfers	$0.31 billion	2023	N/A	Annual.
	From fees (Year 1) and taxes from applicants and employers to the Federal government (annual).
Year 1 monetized net benefits	$0.28 billion	2023	N/A	Year 1.
Year 2+ annualized monetized net benefits	$1.15 billion	2023	N/A	Annualized.

This Federal Register notice is exempt from notice-and-comment rulemaking requirements for the following reasons.

First, DHS is merely adopting a general statement of policy, [ 243 ] i.e., a “statement issued by an agency to advise the public prospectively of the manner in which the agency proposes to exercise a discretionary power.”  [ 244 ] As INA section 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A) , provides, parole decisions are made by the Secretary of Homeland Security “in his discretion” and this process leaves USCIS adjudicators the discretion to approve or deny requests consistent with the guidance described in section V.C. of this Notice as they perform their case-by-case review. [ 245 ] DHS has generally exercised its parole authority without rulemaking on the substance of parole processes through the issuance of such general statements of agency policy. [ 246 ] And it is well established that “the mere fact that an agency action,” including a policy statement, “may have a substantial impact does not transform it into a legislative rule.”  [ 247 ]

Second, even if this process were considered to be a legislative rule that would normally be subject to requirements for notice-and-comment rulemaking and a delayed effective date, the process is exempt from such requirements because it involves a foreign affairs function of the United ( print page 67489) States. [ 248 ] Courts have held that this exemption applies when the rule in question “ `is clearly and directly involved' in `a foreign affairs function.' ”  [ 249 ] In addition, although the text of the Administrative Procedure Act does not require an agency invoking this exemption to show that such procedures may result in “definitely undesirable international consequences,” some courts have required such a showing. [ 250 ]

This process is exempt under both standards. Specifically, as discussed above, this process is one part of the United States' ongoing efforts to engage hemispheric partners to increase their efforts to collaboratively manage irregular migration. Regularizing certain noncitizens who have lived in and established deep ties to the United States is a key request of our partner countries, and establishment of this proposed process will help ensure our partners' continued collaboration to address irregular migration in the Western Hemisphere and improve economic stability and security in countries that are common sources of irregular migration to the United States. [ 251 ]

Delaying issuance and implementation of this process to undertake rulemaking would complicate ongoing conversations with key foreign partners about migration management on a range of priorities. These priorities include collaborating with partner countries on initiatives aimed at disrupting human smuggling, trafficking, and transnational criminal networks; increasing migration controls on bus and train routes;  [ 252 ] imposing additional visa requirements to prevent individuals from exploiting legitimate travel regimes to facilitate their irregular journey to the United States;  [ 253 ] and expanding access to lawful pathways.

The delay associated with implementing this process through notice-and-comment rulemaking would adversely affect the United States' ability to negotiate with our international partners, including Mexico and Colombia, for additional enforcement measures and increased cooperation with removals. In the context of ongoing discussions on migration management, representatives of Mexico have specifically requested that the U.S. government regularize Mexican nationals who have been long-term residents of the United States. [ 254 ] Similarly, the Government of Colombia delivered a diplomatic note in April 2024 that requested Deferred Enforced Departure for certain nationals of Colombia residing in the United States, which would enable those individuals to remain lawfully in the United States and access work authorization. The Government of Colombia made similar requests in November 2022 through its ambassador to the United States  [ 255 ] and again in May 2023 during high-level dialogues to stem the flows of irregular migration through the Darién and during negotiations to establish and extend Safe Mobility Offices  [ 256 ] beyond the initial phase.

The invocation of the foreign affairs exemption here is also consistent with DHS precedent. For example, in 2017, DHS published a notice eliminating an exception to expedited removal for certain Cuban nationals, which explained that the change in policy was consistent with the foreign affairs exemption because the change was central to ongoing negotiations between the two countries. [ 257 ] DHS similarly invoked the foreign affairs exemption more recently in connection with the parole processes for Cubans, Haitians, Nicaraguans, and Venezuelans  [ 258 ] and family reunification parole processes for certain nationals of Colombia, Ecuador, El Salvador, Guatemala, and Honduras, announced in 2023. [ 259 ]

Under the Paperwork Reduction Act (PRA), 44 U.S.C. chapter 35 , all Departments are required to submit to the Office of Management and Budget (OMB), for review and approval, any new reporting requirements they impose. The process announced by this notice requires a new collection of information on Form I-131F, Application for Parole in Place for Certain Noncitizen Spouses and Stepchildren of U.S. Citizens (OMB control number 1615-NEW), which will be used for the parole in place process for certain noncitizen spouses and stepchildren of U.S. citizens. The Form I-131F will be available for online filing only to support more efficient adjudications and will charge a filing fee of $580 per requestor. The Form I-131F will require the requestor to submit biographic data, processing information, and other supporting documentation in order to evaluate the criteria outlined in this notice, including to: establish the requestor's status as either the spouse or stepchild of a U.S. citizen; rigorously screen the applicant for public safety and national security threats; identify whether the requestor has previously filed Form I-601A with USCIS; instruct the requestor on next steps for submitting required biometrics; and determine whether the requestor meets other criteria related to presence without admission or parole and physical presence for the requisite period, among other questions.

USCIS has submitted, and OMB has approved, the request for emergency authorization of the new Form I-131F (under 5 CFR 1320.13 ) for a period of 6 months. Within 60 days of publication of this notice at the Federal Register , USCIS will begin normal clearance procedures under the PRA to obtain ( print page 67490) three-year approval for this collection. [ 260 ]

Alejandro N. Mayorkas,

Secretary, U.S. Department of Homeland Security.

1.  Public Law 89-236 (1965).

2.  For example, in the Fiscal Year (FY) 2024 President's Budget, USCIS requested $865 million in appropriated funding, but Congress only provided $281 million. See Department of Homeland Security U.S. Citizenship and Immigration Services Budget Overview, Fiscal Year 2024 Congressional Justification, available at https://www.dhs.gov/​sites/​/default/​files/​/2023-03/​U.S.%20CITIZENSHIP/​%20AND%20IMMIGRATION%20SERVICES_​Remediated.pdf (last visited July 16, 2024); Department of Homeland Security Appropriations Act, 2024, Public Law 118-47 , div. C (2024); Department of Homeland Security U.S. Citizenship and Immigration Services Budget Overview, Fiscal Year 2025 Congressional Justification, available at https://www.dhs.gov/​sites/​default/​files/​2024-04/​2024_​0325_​us_​citizenship_​and_​immigration_​services.pdf (last visited July 16, 2024). The February 2024 Bipartisan Border Agreement would have provided $20 billion in funding for border management, including $4 billion to USCIS.

3.  U.S. Dep't of Homeland Security, Office of Homeland Security Statistics (OHSS) analysis of OHSS Estimates of the Unauthorized Immigrant Population Residing in the United States: Jan. 2018-Jan. 2022 (“OHSS Analysis”), tbl. 3.

4.   Id. tbls. 4, 5. Estimated data shows that the median amount of time the entire population of noncitizen spouses of U.S. citizens has been in the United States is 20 years; the median time the PIP-eligible population of noncitizen spouses of U.S. citizens (where the noncitizen spouses have been in the United States for at least 10 years) has been in the United States is 23 years.

5.  This is filed on Form I-130, Petition for Alien Relative.

6.  Adjustment of status is the process by which certain noncitizens may seek LPR status while remaining in the United States, as opposed to consular processing, the process by which certain noncitizens seek an immigrant visa at a United States embassy or consulate abroad and then are admitted to the United States as an LPR at a port of entry. See INA sec. 245(a), 8 U.S.C. 1255(a) ; cf. INA secs. 221-222, 8 U.S.C. 1201-1202 (immigrant visa applications).

7.  INA sec. 245(a), 8 U.S.C 1255(a) .

8.  OHSS Analysis, supra note 3, tbl. 3.

9.  INA sec. 245(a), 8 U.S.C. 1255(a) .

10.  For most of these noncitizens, their departure to pursue consular processing and seeking admission through the application of an immigrant visa makes them inadmissible, and seeking of admission through the application for an immigrant visa within three years from their departure (if they accrued more than 180 days but less than one year of unlawful presence in the United States during a single stay), or within ten years from their departure or removal (of departure or removal (if they accrued one year or more of unlawful presence in the United States during a single stay)), will make them inadmissible under INA section 212(a)(9)(B)(i), 8 U.S.C. 1182(a)(9)(B)(i) . See, e.g., Matter of Duarte-Gonzalez, 28 I. & N. Dec. 688, 689-90 (BIA 2023); Matter of Rodarte-Roman, 23 I. & N. Dec. 905, 908-10 (BIA 2006) (holding that the 3-year and 10-year unlawful presence bars are not triggered unless and until the noncitizen departs from the United States). This ground of inadmissibility may be waived, but approval of such a waiver is discretionary and requires applicants to “establish [ ] . . . that the refusal of [the applicant's] admission . . . would result in extreme hardship to the citizen or [LPR] spouse or parent” of the applicant. INA sec. 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v) .

11.  As discussed in greater detail in this notice, the provisional waiver process through the Form I-601A, Application for Provisional Unlawful Presence Waiver, permits certain noncitizens to apply for a provisional waiver of the unlawful presence grounds of inadmissibility under INA section 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v) , prior to their departure from the United States. While an important mechanism, the Form I-601A provisional waiver process has become significantly backlogged in recent years, still requires the noncitizen to depart and remain separated from their U.S. citizen relatives during consular processing, and does not provide a guarantee that an immigrant visa will ultimately be granted. See 8 CFR 212.7(e) (describing the provisional unlawful presence waiver process).

12.  Exec. Order No. 14012, Restoring Faith in Our Legal Immigration System and Strengthening Integration and Inclusion Efforts for New Americans, 86 FR 8277 (Feb. 5, 2021).

13.   See USCIS, Completing an Unprecedented 10 Million Immigration Cases in Fiscal Year 2023, USCIS Reduced Its Backlog for the First Time in Over a Decade (Feb. 9, 2024), https://www.uscis.gov/​EOY2023 ; USCIS Fiscal Year 2022 Progress Report (Dec. 2022), www.uscis.gov/​sites/​default/​files/​document/​reports/​OPA_​ProgressReport.pdf .

14.  The White House, FACT SHEET: President Biden Announces New Actions to Keep Families Together, June 18, 2024, available at https://www.whitehouse.gov/​briefing-room/​statements-releases/​2024/​06/​18/​fact-sheet-president-biden-announces-new-actions-to-keep-families-together/​ .

15.  INA sec. 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A) (“The [Secretary] may . . . in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States . . .”).

16.   See Section II.B. of this notice for additional information on parole in relation to adjustment of status.

17.   See INA sec. 245(a), (c), 8 U.S.C. 1255(a) , (c); 8 CFR part 245 .

18.  And in the case of certain widows or widowers, where eligible as described in this notice, Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.

19.  Noncitizens who have been convicted of serious offenses, such as felonies, will be ineligible for this process. See Section V.A. of this notice for additional detail on disqualifying criminal history.

20.   See INA sec. 101(b)(1), 8 U.S.C. 1101(b)(1) .

21.   See INA sec. 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A) ; see also INA sec. 235(a)(1), 8 U.S.C. 1225(a)(1) (“An alien present in the United States who has not been admitted or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters) shall be deemed for purposes of this chapter an applicant for admission.”).

22.  Noncitizens who are immediate relatives of a U.S. citizen and were admitted to the United States on a valid nonimmigrant visa but have remained in the United States beyond the period of stay authorized will generally meet the “inspected and admitted or paroled” requirement for adjustment of status without the need for parole in place. See INA sec. 245(a), 8 U.S.C. 1255(a) ; INA sec. 245(c)(2), 8 U.S.C. 1255(c)(2) . Similarly, noncitizens who were paroled into the United States on or after their last arrival would also meet this requirement.

23.  OHSS Analysis, supra note 3, tbl. 3.

24.   See, e.g., Memorandum from Paul W. Virtue, INS General Counsel, to INS officials, Authority to Parole Applicants for Admission Who Are Not Also Arriving Aliens, Legal Op. No. 98-10, 1998 WL 1806685 (Aug. 21, 1998), superseded in part on other grounds by Memorandum from Gus P. Coldebella, DHS General Counsel, to DHS officials, Clarification of the Relation Between Release under Section 236 and Parole under Section 212(d)(5) of the Immigration and Nationality Act (Sept. 28, 2007) (“Coldebella Memo”), available at https://www.uscis.gov/​sites/​default/​files/​document/​legal-docs/​Coldebella_​Memo.pdf ; see also, e.g., Ortega-Cervantes v. Gonzales, 501 F.3d 1111, 1118 (9th Cir. 2007) (discussing 1998 INS General Counsel Memo and 1999 INS Cuban parole policy, and stating that “[w]e see nothing [in the INA] that would preclude the government from paroling . . . into the United States under § 1182(d)(5)(A)” noncitizens “who are currently present in the United States but who were not inspected upon arrival at a port of entry” and that “[t]he [INS] General Counsel's memorandum is consistent with our conclusion . . . that there is no per se bar on paroling unlawful entrants into the United States pursuant to § 1182(d)(5)(A)”).

25.   Immigration Needs of America's Fighting Men and Women, Hearing Before the Subcomm. on Immigr., Citizenship, Refugees, Border Sec., & Int'l L. of the Comm. on the Judiciary, H.R., 110th Cong. 15 (2008) (testimony of Margaret Stock, Attorney and Lieutenant Colonel, Military Police Corps, United States Army Reserve).

26.  While the USCIS policy memorandum articulating the use of parole in place for military family members was issued in 2013, as a matter of practice, USCIS has been issuing parole in place for members of this population since 2010. Making this process available only to certain spouses and stepchildren of U.S. citizens is consistent with past sparing uses of parole in place. See id. DHS continues to view use of parole in place as consistent with the best reading of the statute, as described in section II in this notice. For reasons discussed throughout this notice, making it available to this population also is a better practice than retaining the status quo. See USCIS Policy Memorandum, PM-602-0091, Parole of Spouses, Children and Parents of Active Duty Members of the U.S. Armed Forces, the Selected Reserve of the Ready Reserve, and Former Members of the U.S. Armed Forces or Selected Reserve of the Ready Reserve and the Effect of Parole on Inadmissibility under Immigration and Nationality Act sec. 212(a)(6)(A)(i) (Nov. 15, 2013) (“USCIS Military Parole in Place Memorandum”), available at https://www.uscis.gov/​sites/​default/​files/​document/​memos/​2013-1115_​Parole_​in_​Place_​Memo_​.pdf , superseded in part by USCIS Policy Memorandum, PM-602-1104, Discretionary Options for Designated Spouses, Parents, and Sons and Daughters of Certain Military Personnel, Veterans, and Enlistees (Nov. 23, 2016), available at https://www.uscis.gov/​sites/​default/​files/​document/​memos/​PIP-DA_​Military_​Final_​112316.pdf .

27.   See National Defense Authorization Act for Fiscal Year 2020, Public Law 116-92 , sec. 1758 (2019) ( 8 U.S.C. 1182 note ) (NDAA 2020) (“the importance of the parole in place authority of the Secretary of Homeland Security is reaffirmed”).

28.   See, e.g., Foreign Operations, Export Financing, and Related Programs Appropriations Act of 1990, Public Law 101-167, sec. 599E ( 8 U.S.C. 1255 note ) (authorizing granting permanent residence to parolees from the Soviet Union, Vietnam, Laos, and Cambodia); Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Public Law 104-208 , div. C, sec. 646 ( 8 U.S.C. 1255 note ) (providing for adjustment of status for noncitizens from Poland and Hungary who had been denied refugee status but who had been “inspected and granted parole into the United States”); NDAA 2020, sec. 1758, supra note 27 (expressing congressional support for an ongoing parole program for relatives of U.S. military members and considering in each case-by-case determination whether parole would advance family unity that would constitute a significant public benefit); Extending Government Funding and Delivering Emergency Assistance Act of 2021, Public Law 117-43 , sec. 2502 ( 8 U.S.C. 1101 note ) (providing refugee benefits to Afghans paroled under INA section 1182(d)(5) and funds to support those benefits); Ukraine Supplemental Appropriations Act of 2022, Public Law 117-128 , sec. 401 ( 8 U.S.C. 1101 note ) (providing benefits to Ukrainians paroled under INA sec. 212(d)(5), 8 U.S.C. 1182(d)(5) and funds to support those benefits).

29.   See Economic Analysis section in this notice.

30.   See Delegation to the Bureau of Citizenship and Immigration Services (Delegation No. 0150.1, Sec. II(O)) (June 5, 2003) (vesting parole authority in USCIS through its Director and subordinate officers).

31.   See INA sec. 101(a)(13)(A), 8 U.S.C. 1101(a)(13)(A) ,) (defining the terms “admission” and “admitted” as “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer”); INA sec. 212(d)(5), 8 U.S.C. 1182(d)(5) ; see also USCIS Policy Manual, Volume 7, Adjustment of Status, Part B, 245(a) Adjustment, Chapter 2, Eligibility Requirements, Section 3, Parole [7 USCIS PM B.2 (A)(3)] (“Parole in Place: Parole of Certain Noncitizens Present Without Admission or Parole”), available at https://www.uscis.gov/​policy-manual/​volume-7-part-b-chapter-2 (last updated July 16, 2024).

32.   See INA sec. 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A) ; INA sec. 235(a)(1), 8 U.S.C. 1225(a)(1) (“An alien present in the United States who has not been admitted or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters) shall be deemed for purposes of [the INA] an applicant for admission. A noncitizen placed in removal proceedings pursuant to INA sec. 240, 8 U.S.C. 1229a , may also be an applicant for admission, and such an individual could be considered for this parole in place process even if released from custody under INA sec. 236(a), 8 U.S.C. 1226(a) , as long as they have not been admitted. See INA sec. 240(a)(2), 8 U.S.C. 1229a(a)(2) (“An alien placed in proceedings under this section may be charged with any applicable ground of inadmissibility under section 1182(a) of this title. . .”).

33.   See supra note 24 and Section II.C of this notice.

34.  INA sec. 101(a)(13)(B), 8 U.S.C. 1101(a)(13)(B) ; INA sec. 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A) .

35.  INA sec. 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A) .

36.   8 CFR 212.5(e) (providing that a noncitizen's parole may terminate automatically or upon written notice). In addition, neither the denial of a parole in place request nor a parole termination determination is subject to judicial review. See INA sec. 242(a)(2)(B)(ii), 8 U.S.C. 1252(a)(2)(B)(ii) ; Bolante v. Keisler, 506 F.3d 618, 621 (7th Cir. 2007); Samirah v. O'Connell, 335 F.3d 545, 549 (7th Cir. 2003); see also Vazquez Romero v. Garland, 999 F.3d 656, 665 (9th Cir. 2021) (“We have previously concluded that the jurisdiction-stripping provision of [8 U.S.C.] 1252(a)(2)(B)(ii) applies to discretionary parole decisions under sec. 1182(d)(5).” (citing Hassan v. Chertoff, 593 F.3d 785, 790 (9th Cir. 2010))).

37.   8 CFR 274a.12(c)(11) .

38.  INA sec. 212(a)(9)(B)(ii), 8 U.S.C. 1182(a)(9)(B)(ii) (“[A]n alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled.”).

39.   See infra notes 65-72 and Section II.D. of this notice for a discussion of Existing Family Unity Parole Policies; see also, e.g., Reno v. Flores, 507 U.S. 292, 313-14 (1993) (holding that a statute requiring “individualized determination[s]” does not prevent immigration authorities from using “reasonable presumptions and generic rules”); Fook Hong Mak v. INS, 435 F.2d 728, 730 (2d Cir. 1970) (upholding INS's authority to “determine[ ] certain conduct to be so inimical to the statutory scheme that all persons who have engaged in it shall be ineligible for favorable consideration” and observing that there is no legal principle forbidding an agency that is “vested with discretionary power” from determining that it will not use that power “in favor of a particular class on a case-by-case basis”); cf. INA sec. 212(d)(5)(B), 8 U.S.C. 1182(d)(5)(B) (providing that DHS may parole a noncitizen determined to be a refugee only if DHS “determines that compelling reasons in the public interest with respect to that particular alien require that the alien be paroled into the United States rather than be admitted as a refugee” (emphasis added)).

40.   See supra note 28.

41.  INA sec. 245(a); 8 U.S.C. 1255(a) . To apply for adjustment of status under INA sec. 245(a), the noncitizen must also have an immigrant visa “immediately available to him” or her at the time of filing. INA sec. 245(a)(3), 8 U.S.C. 1255(a)(3) . Because there is no numerical limit on immigrant visas for spouses of U.S. citizens, see INA sec. 201(b)(2)(A)(i), 8 U.S.C. 1151(b)(2)(A)(i) , immigrant visas are immediately available to them upon approval of a Form I-130. See 8 CFR 245.2(a)(2)(i)(B) . Cuban nationals who are paroled also may be eligible for adjustment of status under the Cuban Adjustment Act, Public Law 89-732 (1966) ( 8 U.S.C. 1255 note ), without regard to the availability of an immigrant visa.

42.  DHS may also release a noncitizen present without admission or parole from custody on “conditional parole,” also known as a release on one's own recognizance, under INA sec. 236(a)(2)(B), 8 U.S.C. 1226(a)(2)(B) , pending INA sec. 240, 8 U.S.C. 1229a , removal proceedings. Conditional parole under INA sec. 236(a)(2)(B), however, does not equate to parole under INA sec. 212(d)(5), 8 U.S.C. 1182(d)(5) , and therefore does not constitute parole for purposes of adjustment of status under INA sec. 245, 8 U.S.C. 1255 , or the Cuban Adjustment Act. See Matter of Cabrera-Fernandez, 28 I&N Dec. 747, 748-50 (BIA 2023) (reaffirming Matter of Castillo-Padilla, 25 I&N Dec. 257 (BIA 2010), aff'd, 417 F. App'x 888 (11th Cir. 2011)); Coldebella Memo, supra note 24 (clarifying that “conditional parole” under section INA 236(a)(2)(B), 8 U.S.C. 1226(a)(2)(B) , does not constitute parole under INA section 212(d)(5), 8 U.S.C. 1182(d)(5) ). However, such noncitizens may remain eligible to request a grant of parole in place if they have not otherwise been “admitted” to the United States and meet the other requirements.

43.   See INA sec. 245, 8 U.S.C. 1255 (requirements for adjustment of status); INA sec. 212(a), 8 U.S.C. 1182(a) (grounds of inadmissibility). While noncitizens generally must also have “maintain[ed] continuously a lawful status since entry into the United States” to qualify for adjustment of status under INA sec. 245(a), 8 U.S.C. 1255(a) , this restriction does not apply to immediate relatives, which includes spouses and children (including stepchildren) of U.S. citizens. See INA sec. 245(c), 8 U.S.C. 1255(c) (bars to adjustment of status eligibility); INA sec. 201(b)(2)(A)(i), 8 U.S.C. 1151(b)(2)(A)(i) (defining “immediate relatives”); INA sec. 101(b)(1), 8 U.S.C. 1151(b)(1) (defining “child”). See also discussion of unlawful presence supra note 10.

44.  INA sec. 245(a), 8 U.S.C. 1255(a) .

45.   Duarte v. Mayorkas, 27 F.4th 1044, 1058 (5th Cir. 2022); see INA sec. 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A) (providing that parole shall not be regarded as admission); INA sec. 101(a)(13)(B), 8 U.S.C. 1101(a)(13)(B) (same); see also, e.g., Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 175 (1993) (observing that “[u]nder the INA, both then and now, those seeking `admission” and trying to avoid `exclusion' were already within our territory (or at its border)” could be paroled under INA section 212(d)(5), 8 U.S.C. 1182(d)(5) , “but the law treat[s] them as though they had never entered the United States at all”); Leng May Ma v. Barber, 357 U.S. 185, 189 (1958) (noting the legal fiction that a parolee is considered to be constructively remaining at the border applying for admission); Cruz-Miguel v. Holder, 650 F.3d 189, 197 n.12 (2d Cir. 2011) (“Although [noncitizens] paroled under 8 U.S.C. 1182(d)(5)(A) physically enter the United States temporarily, they are nevertheless deemed to remain constructively detained at the border.”).

46.  The phrase “parole into the United States” in INA section 212(d)(5)(A) allows for the temporary release or continued presence of “any” applicant for admission—even though already present in the United States—within U.S. territory pending accomplishment of the purpose of the parole. INA sec. 212(d)(5), 8 U.S.C. 1182(d)(5) . At the same time, as described in settled case law, the parolee is deemed to be constructively at the border, and courts have consistently understood “parole into the United States” as being applicable to applicants for admission who are already present in U.S. territory ( e.g., arriving noncitizens who were subject to detention pending exclusion proceedings), even if, under pre-IIRIRA law, they were not considered to have effected an “entry,” as that term was formerly defined, see 8 U.S.C. 1101(a)(13) (1994), into the United States for immigration purposes). See, e.g., Sale, 509 U.S. at 175; Leng May Ma, 357 U.S. at 189; see also Abramski v. United States, 573 U.S. 169, 179 (2014) (“[W]e must (as usual) interpret the relevant words in a statute not in a vacuum, but with reference to the statutory context, structure, history and purpose.”) (quotation marks omitted); FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (underscoring the “fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme”); cf. Bruesewitz v. Wyeth LLC, 562 U.S. 223, 243 (2011) (emphasizing the force of “consistent judicial gloss” assigned to a statutory “term or concept”).

47.  INA sec. 235(a)(1), 8 U.S.C. 1225(a)(1) .

48.  INA sec. 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A) ; see Cruz-Miguel, 650 F.3d at 197-98 & n.12.

49.   Cruz-Miguel, 650 F.3d at 198; see also Ortega-Cervantes, 501 F.3d at 1116 (same).

50.  INA sec. 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A) . For purposes of the parole statute, “applying for admission” is synonymous with “applicant for admission.” See id. (providing that when DHS determines the purposes of parole of the noncitizen “have been served,” the noncitizen's “case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States”) (emphasis added); 8 CFR 212.5 (1959) (referring to parole at ports of entry under INA sec. 212(d)(5) of “any . . . applicant for admission” at the INS district director's discretion).

51.   Id.; see Ortega-Cervantes, 501 F.3d at 1116.

52.  Memorandum from Paul W. Virtue, INS General Counsel, to INS officials, Authority to Parole Applicants for Admission Who Are Not Also Arriving Aliens, Legal Op. No. 98-10, 1998 WL 1806685 (Aug. 21, 1998). Based on that 1998 INS legal opinion, the INS Commissioner issued a policy statement authorizing the parole of certain Cuban nationals who entered the United States without inspection, taking into consideration the fact that parole could allow an application for adjustment of status under the Cuban Adjustment Act of 1966 after one year. See Memorandum from Doris Meissner, INS Commissioner, to INS officials, Eligibility for Permanent Residence Under the Cuban Adjustment Act Despite Having Arrived at a Place Other than a Designated Port-of-Entry (Apr. 19, 1999), reprinted in 76 Interpreter Releases 676, 684, App. 1 (May 3, 1999).

53.  Memorandum from Gus P. Coldebella, DHS General Counsel, to DHS officials, Clarification of the Relation Between Release under Section 236 and Parole under Section 212(d)(5) of the Immigration and Nationality Act (Sept. 28, 2007) (“Coldebella Memo”), available at https://www.uscis.gov/​sites/​default/​files/​document/​legal-docs/​Coldebella_​Memo.pdf .

54.   Notice Designating Aliens Subject to Expedited Removal Under Section 235(b)(1)(A)(iii) of the Immigration and Nationality Act, 67 FR 68924 , 68925 (Nov. 13, 2002). The Department, likewise, for the past two decades, has routinely “parole[d] into the United States” under INA section 212(d)(5)(A) certain applicants for admission who are encountered within 14 days and 100 miles of the U.S. land border after having crossed into the country without inspection and being placed in expedited removal proceedings. See Designating Aliens for Expedited Removal, 69 FR 48877 , 48879 (Aug. 11, 2004).

55.  USCIS Military Parole in Place Memorandum, supra note 26.

56.  Memorandum from Jeh Johnson, Secretary, U.S. Dep't of Homeland Security, Families of U.S. Armed Forces Members and Enlistees (Nov. 20, 2014) (directing USCIS to issue expanded policies on the use of both parole in place and deferred action for certain spouses, children, and parents of individuals seeking to enlist in the U.S. Armed Forces as well as those currently serving), available at https://www.dhs.gov/​sites/​default/​files/​publications/​14_​1120_​memo_​parole_​in_​place.pdf .

57.   See NDAA 2020 sec. 1758(a) (referring to “parole in place under section 212(d)(5)”), supra note 27.

58.  NDAA 2020, sec. 1758(b)(3), supra note 27.

59.  NDAA 2020, sec. 1758(a) and (b), supra note 27.

60.   See Northern Mariana Islands Long-Term Legal Residents Relief Act, Public Law 116-24 , sec. 2 (2019) ( 48 U.S.C. 1806(e)(6) ).

61.   See NDAA 2020, sec. 1758(b)(3), supra note 27.

62.   See Cruz-Miguel, 650 F.3d at 198; Ortega-Cervantes, 501 F.3d at 1116.

63.  DHS, USCIS, Office of Performance and Quality (OPQ), Computer-Linked Application Information Management System (CLAIMS) 3 (queried 6/2024).

64.   See Texas v. Biden, 20 F.4th 928, 947 (5th Cir. 2021) (noting that “[q]uintessential modern uses of the parole power include . . . paroling aliens who qualify for a visa but are waiting for it to become available”) (citing T. Alexander Aleinikoff et al., Immigration and Citizenship: Process and Policy 299 (9th ed. 2021)), rev'd on other grounds, 597 U.S. 785 (2022).

65.   Cuban Family Reunification Parole Program, 72 FR 65588 (Nov. 21, 2007).

66.   Implementation of Haitian Family Reunification Parole Program, 79 FR 75581 (Dec. 18, 2014).

67.   Filipino World War II Veterans Parole Policy, 81 FR 28097 (May 9, 2016).

68.   Implementation of a Family Reunification Parole Process for Colombians, 88 FR 43591 (July 10, 2023).

69.   Implementation of a Family Reunification Parole Process for Ecuadorians, 88 FR 78762 (Nov. 16, 2023).

70.   Implementation of a Family Reunification Parole Process for Salvadorans, 88 FR 43611 (July 10, 2023).

71.   Implementation of a Family Reunification Parole Process for Guatemalans, 88 FR 43581 (July 10, 2023).

72.   Implementation of a Family Reunification Parole Process for Hondurans, 88 FR 43601 (July 10, 2023).

73.   Implementation of Changes to the Cuban Family Reunification Parole Process, 88 FR 54639 (Aug. 11, 2023); Implementation of Changes to the Haitian Family Reunification Parole Process, 88 FR 54635 (Aug. 11, 2023).

74.  INA sec. 101(b)(1)(B), 8 U.S.C. 1101(b)(1)(B) (defining “child” as an unmarried person under age twenty-one, who is, inter alia, “a stepchild, whether or not born out of wedlock, provided the child had not reached the age of eighteen years at the time the marriage creating the status of stepchild occurred”).

75.   See Section VI. of this notice for additional information regarding proper filing of a request for parole in place under this process.

76.   See INA 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A) .

77.   See 8 CFR 103.2(b)(8) .

78.   See 8 CFR 103.2(b)(9) .

79.  As discussed further in Section V.A. of this notice, there is an exception for border security concerns for stepchildren who otherwise meet the criteria for parole in place under this process.

80.   See Section V.A. of this notice.

81.   See, e.g., Memorandum from Alejandro N. Mayorkas, Secretary, U.S. Dep't of Homeland Security to Tae D. Johnson, Acting Director, U.S. Immigration and Customs Enforcement, et al., Guidelines for the Enforcement of Civil Immigration Law (Sept. 30, 2021) (“September 2021 Guidelines”), available at https://www.ice.gov/​doclib/​news/​guidelines-civilimmigrationlaw.pdf .

82.  As noted above and discussed further in Section V.A. of this notice, noncitizens present border security concerns if they were apprehended while attempting to enter the U.S. unlawfully or if they entered unlawfully after November 1, 2020. There is an exception to this for stepchildren who otherwise meet the criteria for parole in place under this process.

83.  A noncitizen with an unexecuted final removal order who overcomes this presumption and is granted parole in place, and who wishes to pursue adjustment of status, may file a motion to reopen or a motion to reopen and terminate removal proceedings with EOIR. Noncitizens may request U.S. Immigration and Customs Enforcement (ICE) Office of the Principal Legal Advisor (OPLA) to join (or not oppose) a motion to reopen and dismiss or terminate submitted to EOIR, depending on the facts and circumstances. Any such motion would be decided on its own merits in a distinct and separate process from the parole in place adjudication.

84.   See Matter of Castillo-Padilla, 25 I. & N. Dec. 257, 261 (BIA 2010), aff'd, 417 F. App'x 888 (11th Cir. 2011).

85.   See, e.g., September 2021 Guidelines, supra note 81.

86.   Nwozuzu v. Holder, 726 F.3d 323, 332 (2d Cir. 2013) (citing H.R. Rep. No. 82-1365 (1952), reprinted in 1952 U.S.C.C.A.N. at 1680); see also Holder v. Martinez Gutierrez, 566 U.S. 583, 594 (2012) (recognizing that the “objectives of providing relief to [noncitizens] with strong ties to the United States and promoting family unity . . . underlie or inform many provisions of immigration law,” even if “they are not the INA's only goals, and Congress did not pursue them to the n th degree”) (quotation marks omitted) (citing Fiallo v. Bell, 430 U.S. 787, 795 n.6 (1977), and INS v. Errico, 385 U.S. 214, 220 (1966)).

87.  OHSS Analysis, supra note 3, tbl. 3.

88.   Id. tbl. 5.

89.   Id. tbl. 4. While the total number of U.S. citizens living in families with noncitizen spouses who lack lawful status is over 2.5 million, including over 1.6 million children, the subset of U.S. citizens living with noncitizen spouses who lack lawful status, who have lived in the country for 10 or more years, and who entered without inspection is estimated to be 1.65 million, including an estimated 1.1 million U.S. citizen children.

90.  Edward Vargas & Vickie Ybarra, U.S. Citizen Children of Undocumented Parents: The Link Between State Immigration Policy and the Health of Latino Children, J. Immigr. Minor Health (Aug. 2017), available at https://www.ncbi.nlm.nih.gov/​pmc/​articles/​PMC5236009 . The impact of this instability is particularly profound for children in these families. See “Preventing violence through the development of safe, stable, and nurturing relationships between children and their parents and caregivers,” World Health Organization and Centre for Public Health (2009), https://iris.who.int/​bitstream/​handle/​10665/​44088/​9789241597821_​eng.pdf ; Vincent J. Felitti et al., Relationship of Childhood Abuse and Household Dysfunction to Many of the Leading Causes of Death in Adults: The Adverse Childhood Experiences (ACE) Study, Am. J. Preventive Medicine 14 no. 4, 245-258 (1998), https://www.ajpmonline.org/​article/​S0749-3797(98)00017-8/​fulltext ; A. Martinez, L. Ruelas, and D. Granger, Household fear of deportation in Mexican-origin families: Relation to body mass index percentiles and salivary uric acid, Am. J. Hum. Biol. 2017, https://pubmed.ncbi.nlm.nih.gov/​28726338/​ ; L. Rojas-Flores, M. Clements, J. Hwang Koo, and J. London, Trauma and psychological distress in Latino citizen children following parental detention and deportation, Psychol. Trauma 2017, https://pubmed.ncbi.nlm.nih.gov/​27504961/​ .

91.  USCIS Military Parole in Place Memorandum, supra note 26.

92.   See 8 CFR 274a.12(c)(11) . Noncitizens who apply for adjustment of status to that of an LPR under INA sec. 245 may also apply for and obtain employment authorization while their adjustment application remains pending. See 8 CFR 274a.12(c)(9) .

93.  Cecilia Rouse, Lisa Barrow, Kevin Rinz, and Evan Soltas, White House Council of Economic Advisers, Economic Benefits of Extending Permanent Legal Status to Unauthorized Immigrants (Sept. 17, 2021), https://www.whitehouse.gov/​cea/​written-materials/​2021/​09/​17/​the-economic-benefits-of-extending-permanent-legalstatus-to-unauthorized-immigrants/​ .

94.   Id.

95.  Felipe González Morales, United Nations Special Rapporteur on the Human Rights of Migrants, How to Expand and Diversify Regularization Mechanisms and Programmes to Enhance the Protection of the Human Rights of Migrants, at 3, U.N. Doc. A/HRC.52/26 (Apr. 20, 2023).

96.   See supra note 93.

97.   See Migration Policy Institute, “Profile of the Unauthorized Population: United States,” available at https://www.migrationpolicy.org/​data/​unauthorized-immigrant-population/​state/​US (last visited June 16, 2024).

98.  Cecilia Rouse, Lisa Barrow, Kevin Rinz, and Evan Soltas, White House Council of Economic Advisers, Economic Benefits of Extending Permanent Legal Status to Unauthorized Immigrants (Sept. 17, 2021) (describing the ways in which the presence of immigrants helps stimulate the economy), available at https://www.whitehouse.gov/​cea/​written-materials/​2021/​09/​17/​the-economic-benefits-of-extending-permanent-legal-status-to-unauthorized-immigrants/​ .

99.   Id.; see also U.S. Bureau of Labor Statistics, Number of unemployed persons per job opening, seasonally adjusted, available at https://www.bls.gov/​charts/​job-openings-and-labor-turnover/​unemp-per-job-opening.htm #.

100.  Memorandum from Alejandro Mayorkas, Secretary, U.S. Dep't of Homeland Security, Worksite Enforcement: The Strategy to Protect the American Labor Market, the Conditions of the American Worksite, and the Dignity of the Individual (Oct. 12, 2021), available at https://www.dhs.gov/​publication/​memorandum-worksite-enforcement .

101.   See, e.g., Annette Bernhardt, Ruth Milkman, and Nik Theodor, National Employment Law Project, Broken Laws, Unprotected Workers: Violations of Employment and Labor Laws in America's Cities 25, 42-45 (Sept. 21, 2009), available at https://www.nelp.org/​insights-research/​broken-laws-unprotected-workers-violations-of-employment-and-labor-laws-in-americas-cities/​ .

102.   See, e.g., Tsedeye Gebreselassie, Nayantara Mehta, and Irene Tung, National Employment Law Project, How California Can Lead on Retaliation Reforms to Dismantle Workplace Inequality 8 (Nov. 2, 2022), available at https://www.nelp.org/​insights-research/​how-california-can-lead-on-retaliation- reforms-to-dismantle-workplace-inequality/ (noting that only 10 percent of respondents who experienced labor violations reported those violations to a government agency).

103.  U.S. Dep't of Homeland Security, DHS Announces Process Enhancements for Supporting Labor Enforcement Investigations (Jan. 13, 2023) (describing how deferred action protects undocumented workers who may then come forward to participate in enforcement agency investigations of potential violations of labor laws), available at https://www.dhs.gov/​news/​2023/​01/​13/​dhs-announces-process-enhancements-supporting-labor-enforcement-investigations .

104.   See, e.g., Carl Davis, Marco Guzman, and Emma Sifre, Institute on Taxation and Economic Policy, Tax Payments by Undocumented Immigrants (July 30, 2024), available at https://itep.org/​undocumented-immigrants-taxes-2024 .

105.   See, e.g., Nat'l Taxpayer Advocate, Annual Report to Congress, Vol. 1, 199 (2015) (“In 2015, 4.4 million ITIN filers paid over $5.5 billion in payroll and Medicare taxes and $23.6 billion in total taxes”), available at https://www.taxpayeradvocate.irs.gov/​wp-content/​uploads/​2020/​08/​ARC15_​Volume1.pdf ; Stephen Goss et al., Social Security Administration, Office of the Chief Actuary, Actuarial Note No. 151, Effects of Unauthorized Immigration on the Actuarial Status of the Social Security Trust Funds (Apr. 2013) (“For the year 2010, we estimate that the excess of tax revenue paid to the [Social Security] Trust Funds over benefits paid from these funds based on earnings of unauthorized workers is about $12 billion.”), available at https://www.ssa.gov/​oact/​NOTES/​pdf_​notes/​note151.pdf .

106.  Rouse et al., supra note 93 (citing Elizabeth U. Cascio & Ethan G. Lewis, Distributing the Green (Cards): Permanent Residency and Personal Income Taxes after the Immigration Reform and Control Act of 1986, 172 J. Pub. Econ. 135 (2019)); Davis et al., supra note 104.

107.   See, e.g., National Academies, The Economic and Fiscal Consequences of Immigration (2017), available at https://www.nationalacademies.org/​our-work/​economic-and-fiscal-impact-of-immigration .

108.  USCIS, Appendix: Eligibility for Public Benefits (describing limitations on when “qualified aliens,” including parolees and LPRs, can access public benefits, typically after five years), available at https://www.uscis.gov/​sites/​default/​files/​document/​policy-manual-resources/​Appendix-EligibilityforPublicBenefits.pdf ; see also 8 U.S.C. 1641(b) (defining “qualified alien”). Cuban and Haitian nationals who are granted parole, however, are generally eligible for “Cuban-Haitian Entrant Program” (CHEP) benefits. See Refugee Education Assistance Act of 1980, Public Law 96-422, sec. 501 ( 8 U.S.C. 1522 note ); 8 CFR 212.5(h) ; see also U.S. Dep't of Health and Human Services, Office of Refugee Resettlement, Benefits for Cuban/Haitian Entrants (Fact Sheet), available at https://www.acf.hhs.gov/​orr/​fact-sheet/​benefits-cuban/​haitian-entrants . Eventually, with LPR status, these parolees could potentially become eligible for other public benefits, but their uptake of these public benefits would likely be curtailed by their access to lawful employment and offset by the increased taxes they would pay as formal contributors to the economy. Rouse et al., supra note 93. However, as discussed elsewhere in this section, DHS estimates that only 13 percent of noncitizens likely to access this parole in place process are nationals of Western Hemisphere countries other than Mexico, Guatemala, Honduras, or El Salvador.

109.  OHSS Analysis, supra note 3, tbl. 3.

110.   Id.

111.  The White House, Fact Sheet: Third Ministerial Meeting on the Los Angeles Declaration on Migration and Protection in Guatemala (May 7, 2024) (“White House Fact Sheet”), available at https://www.whitehouse.gov/​briefing-room/​statements-releases/​2024/​05/​07/​fact-sheet-third-ministerial-meeting-on-the-los-angeles-declarationon-migration-and-protection-in-guatemala/​ .

112.   See U.S. Dep't of State, Secretary Antony J. Blinken and Secretary of Homeland Security Alejandro Mayorkas at a Joint Press Availability (Apr. 27, 2023), available at https://www.state.gov/​secretary-antony-j-blinken-and-secretary-of-homeland-security-alejandro-mayorkas-at-a-joint-press-availability .

113.  White House Fact Sheet, supra note 111.

114.  The White House, Mexico-U.S. Joint Communique: Mexico and the United States Reaffirm Their Shared Commitments on an Orderly, Humane and Regular Migration (Dec. 28, 2023), available at https://www.whitehouse.gov/​briefing-room/​statements-releases/​2023/​12/​28/​mexico-u-s- joint-communique-mexico-and-the-united-states-reaffirm-their-shared-commitments-on-an-orderly-humane-and-regular-migration/.

115.   See, e.g., Government of Mexico, En diálogo con su homólogo estadounidense, presidente López Obrador ratifica propuesta en materia migratoria (In Dialogue with His American Counterpart, President López Obrador Ratifies Proposal on Immigration Matters) (Feb. 3, 2024), available at https://www.gob.mx/​presidencia/​prensa/​en-dialogo-con-su-homologo-estadounidense-presidente-lopez-obrador-ratifica-propuesta-en-materia-migratoria .

116.   See, e.g., Department of State, U.S.-Colombia Joint Commitment to Address the Hemispheric Challenge of Irregular Migration (June 4, 2023), available at https://www.state.gov/​u-s-colombia-joint-commitment-to-address-the-hemispheric-challenge-of-irregular-migration/​ ; see also Department of State, U.S. Relations with Mexico (Sept. 13, 2023), available at https://www.state.gov/​u-s-relations-with-mexico/​ .

117.   See, e.g., Jose Ivan Rodriguez-Sanchez, An Economic Lifeline? How Remittances from the U.S. Impact Mexico's Economy, Baker Institute of Rice University (Nov. 13, 2023), available at https://www.bakerinstitute.org/​research/​economic-lifeline-how-remittances-us-impact-mexicos-economy .

118.  Jeremy Harris and René Maldonado, Migrant wages and remittances to Latin America and the Caribbean in 2023, Migration Unpacked, Inter-American Development Bank (May 15, 2024), available at https://blogs.iadb.org/​migracion/​en/​migrant-wages-and-remittances-to-latin-america-and-the-caribbean-in-2023/​ .

119.   See id.

120.  Certain immigrant visa applicants may use Form I-601A to request a provisional waiver of the unlawful presence grounds of inadmissibility under INA section 212 (a)(9)(B) before departing the United States to appear at a U.S. Embassy or Consulate for an immigrant visa interview. 8 CFR 212.7(e)(3) .

121.  Every submission completed online rather than through paper provides cost savings and operational efficiencies to both USCIS and its customers. USCIS scans some applications, petitions, and requests received on paper so that they can be processed electronically. USCIS offers recommendations to avoid delays when filing paper; if more documents were filed electronically, it would reduce the time spent on scanning paper documents and free up more time for adjudication rather than administrative tasks. See U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements, 89 FR 6194 (Jan. 31, 2024).

122.   See 8 CFR 106.2(a)(7) ; 106.1(g) .

123.   8 CFR 212.7(e)(12)(i) .

124.   8 CFR 212.7(e)(14) .

125.  U.S. Dep't of State, Immigrant Visa Interview-Ready Backlog Report (July 2024), available at https://travel.state.gov/​content/​travel/​en/​us-visas/​visa-information-resources/​visas-backlog.html .

126.   Id.

127.  A grant of parole in place pursuant to this process does not automatically result in removal proceedings before DOJ EOIR being terminated or dismissed. Generally, a party to the removal proceedings (either the noncitizen or ICE) must move for termination or dismissal of removal proceedings. DOJ EOIR (either an immigration judge or the Board of Immigration Appeals) will evaluate and issue a decision on the motion for termination or dismissal under applicable standards. See, e.g., 8 CFR 1003.1(m) , 1239.2(b) ; 8 CFR 1003.18(d) .

128.  If removal proceedings are not terminated or dismissed, the immigration judge generally retains exclusive jurisdiction to adjudicate any application for adjustment of status. 8 CFR 1245.2(a)(1) (providing that in “the case of any [noncitizen] who has been placed in . . . removal proceedings (other than as an arriving alien), the immigration judge . . . has exclusive jurisdiction to adjudicate any application for adjustment of status”); see also 8 CFR 1245.2(a)(1)(ii) (describing exceptions for certain “arriving aliens”); 8 CFR 245.2(a)(1) (providing that USCIS “has jurisdiction to adjudicate an application for adjustment of status filed by any [noncitizen], unless the immigration judge has jurisdiction to adjudicate the application”).

129.  As discussed further in Section V.A. of this notice, there is an exception for border security concerns for stepchildren who otherwise meet the criteria for parole in place under this process.

130.   See, e.g., Stefano Comino et al., Silence of the Innocents: Undocumented Immigrants' Underreporting of Crime and their Victimization, 39 J. of Pol'y Analysis, 1214, 1215 (2020) (“Undocumented victims' reporting rate is less than half the size of documented ones.”).

131.   See Roberto G. Gonzales, Here's How DACA Changed the Lives of Young Immigrants, According to Research, Vox (Feb. 16, 2018), available at https://www.vox.com/​2017/​9/​2/​16244380/​daca-benefits-trump-undocumented-immigrants-jobs . Similar to deferred action, however, parole may be revoked at any time and does not constitute a right against enforcement action.

132.   Id.

133.   See, e.g., Stacey Ivie & Natalie Nanasi, The U Visa: An Effective Resource for Law Enforcement, 78 FBI Law Enforcement Bulletin 10, 10-16 (Oct. 2009).

134.  Noncitizens who are immediate relatives of a U.S. citizen and had a valid nonimmigrant visa but have remained in the United States beyond the period of stay authorized were admitted and paroled may be eligible to apply for adjustment of status without seeking parole in place. See INA sec. 245(a), 8 U.S.C. 1255(a) .

135.   See section VI.B. of this notice for a list of documents that may be provided to establish continuous physical presence.

136.   See Matter of Hosseinian, 19 I. & N. Dec. 453, 455 (BIA 1987) (“the validity of a marriage for immigration purposes is generally governed by the law of the place of celebration of the marriage”); Matter of Rodriguez-Cruz, 18 I. & N. Dec. 72, 73 (BIA 1981) (citing Matter of P-, 4 I. & N. Dec. 610, 613-14 (A.G. 1952) (observing that in the absence of a legislative definition of marriage for immigration purposes, “the generally accepted rule is that the validity of a marriage is governed by the law of the place of celebration”)).

137.   See 8 CFR 204.2(a)(2) (requiring certificate of marriage issued by civil authorities).

138.   See Adjudicator's Field Manual, Chapter 21, Family-based Petitions and Applications available at https://www.uscis.gov/​sites/​default/​files/​document/​policy-manual-afm/​afm21-external.pdf ; see also USCIS Policy Manual Volume 12, Part G, Spouses of U.S. Citizens, Chapter 2, Marriage and Marital Union for Naturalization, Section A, Validity of Marriage [12 USCIS-PM G.2(A)], available at https://www.uscis.gov/​policy-manual/​volume-12-part-g-chapter-2 (last updated June 28, 2024).

139.  This includes polygamous marriages and marriages involving minors, or marriages involving close relatives. See Matter of Manjoukis, 13 I. & N. Dec. 705 (BIA 1971) (14 year old not able to enter into legally valid marriage as it would be void under state law); Matter of H-, 9 I. & N. Dec. 640 (BIA 1962) (a polygamous marriage, though valid where contracted, is not recognized for immigration purposes); see also INA sec. 101(a)(35), 8 U.S.C. 1101(a)(35) ; Matter of Lovo-Lara, 23 I. & N. Dec. 746, 752 n.3 (BIA 2005); Matter of B-, 5 I. & N. Dec. 698 (BIA 1954).

140.  USCIS does not recognize marriages that violate strong Federal public policy, see Matter of H-, 9 I. & N. Dec. 640 (BIA 1962), and there is a strong Federal policy against marriages to which one or both parties do not consent. The Violence Against Women Act Reauthorization Act of 2022 added a definition of forced marriage (“a marriage to which 1 or both parties do not or cannot consent, and in which 1 or more elements of force, fraud, or coercion is present”), and provided for grants for victims' services and legal assistance for victims of forced marriage. See 34 U.S.C. 12291(a)(16) .

141.   See INA sec. 201(b)(2)(A)(i), 8 U.S.C. 1151(b)(2)(A)(i) .

142.  An immediate relative child's age is frozen at the time their Form I-130 or Form I-360 is filed in order to protect them from aging out before being able to adjust status. See INA sec. 201(f), 8 U.S.C. 1151(f) .

143.   See INA sec. 101(b)(1)(B), 8 U.S.C. 1101(b)(1)(B) .

144.   See Section VI.B. of this notice for a list of documents that may be provided to establish continuous physical presence.

145.  For the stepchild to be eligible for an immigrant visa petition or adjustment of status, additional requirements must be met, including that a bona fide relationship exists between the stepchild and U.S. citizen stepparent and, if applicable, eligibility for certain surviving relative benefits. See Matter of Pagnerre, 13 I. & N. Dec. 173 (BIA 1971) (when marriage is terminated by death but there was a continuing relationship thereafter between petitioner and beneficiary, petitioner is regarded as the stepparent of beneficiary for immigration purposes and petition); Matter of Mowrer, 17 I. & N. Dec. 613 (BIA 1981) (where the parents have legally separated or where the marriage has been terminated by divorce or death, the appropriate inquiry is whether a family relationship has continued to exist as a matter of fact between the stepparent and stepchild); see also INA secs. 201(b)(2)(A)(i) and 204( l ), 8 U.S.C. 1151(b)(2)(A)(i) , 1154 ( l ) (describing additional requirements with respect to benefits for certain surviving relatives); 8 CFR 204.2(b) (same).

146.  Indicators of national security concerns include, but are not limited to, participation in activities that threaten the United States or gang membership. Indicators of public safety concerns include, but are not limited to, serious criminal conduct or criminal history. Indicators of border security concerns include recent apprehension while attempting to enter the U.S. unlawfully or apprehension following unlawful entry after November 1, 2020; however, there is an exception for border security concerns for stepchildren who otherwise meet the criteria for parole in place under this process.

147.  These categories of convictions also generally overlap with inadmissibility grounds for purposes of adjustment of status. See INA sec. 212(a), 8 U.S.C. 1182(a) . DHS reserves its discretion to determine that other offenses are disqualifying, even if not listed.

148.  Noncitizens who were under the age of 18 but convicted of a felony or a disqualifying misdemeanor are considered to have disqualifying criminal history and are not eligible for this process.

149.  Although not generally considered convictions for immigration purposes, USCIS will nonetheless consider juvenile delinquency adjudications as resulting in a presumption of ineligibility. However, the presumption may be overcome by factors such as the nature of the underlying offense, requestor's age at the time of the commission of the underlying offense, the length of time that has passed since the adjudication, the sentence or penalty imposed, evidence of rehabilitation, and any other relevant information.

150.  Arrests or criminal charges that do not result in a conviction, such as where a requestor had been arrested but no charges were lodged, or a requestor had been arrested with charges lodged that were later dismissed, does not result in a presumption of ineligibility.

151.  Presumptive ineligibility applies to any removal order issued under INA 240, 8 U.S.C. 1229a , INA 235(b)(1), 8 U.S.C. 1225(b)(1) , or any other provision of law. A final removal order under INA 240, 8 U.S.C. 1229a , is defined at INA 101(a)(47), 8 U.S.C. 1101(a)(47) , and 8 CFR 1241.1 .

152.  These examples solely concern DHS's determination regarding whether the presumption of ineligibility for parole in place has been overcome; they are distinct from any standards considered by DOJ EOIR in the context of a motion to reopen.

153.  A decision by USCIS to grant parole in place to a requestor with an unexecuted removal order does not rescind, cancel, vacate, or otherwise remove the existence of the unexecuted removal order. DOJ EOIR has sole jurisdiction over the decision to reopen removal proceedings under INA section 240, 8 U.S.C. 1229a , see INA sec. 240(c)(7), 8 U.S.C. 1229a(c)(7) ; such reopening vacates any final removal order issued under INA section 240, 8 U.S.C. 1229a , see Nken v. Holder, 556 U.S. 418, 429 n.1 (2009). An unexecuted removal order issued by DOJ EOIR under INA section 240, 8 U.S.C. 1229a , remains in existence, notwithstanding a grant of parole in place, unless and until the INA section 240 proceedings are reopened by an immigration judge or the BIA. Unexecuted removal orders issued by DHS (such as an order of expedited removal under INA section 235(b)(1), 8 U.S.C. 1225(b)(1) , or an administrative order of removal under INA section 238(b), 8 U.S.C. 1228(b) ), likewise remain in existence unless and until they are vacated, canceled, or rescinded by the relevant issuing authority within DHS in that agency's sole discretion.

154.  This includes those with a pending appeal to the BIA, as their removal order would not be administratively final pending resolution of the appeal.

155.   See, e.g., September 2021 Guidelines, supra note 81. As noted in the September 2021 Guidelines, noncitizens present border security concerns if they were apprehended while attempting to enter the U.S. unlawfully or if they entered unlawfully after November 1, 2020. There is an exception to this for stepchildren who otherwise meet the criteria for parole in place under this process.

156.  Expired documents may be provided in conjunction with other documents.

157.  As authorized by the INA, biometric information collected in this process may be used by other DHS components. See also 8 CFR 103.16 . See also discussion on information use and disclosure in this notice.

158.   See INA sec. 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A) .

159.   See INA secs. 201(b)(2)(A)(i), 204(l), 8 U.S.C. 1151(b)(2)(A)(i) , 8 U.S.C. 1154(l) .

160.  Furthermore, by avoiding the need to depart the United States to seek an immigrant visa at a U.S. embassy or consulate, the noncitizen would not trigger the inadmissibility grounds at INA sec. 212(a)(9)(B), 8 U.S.C. 1182(a)(9)(B) , by seeking admission after such departure.

161.  Additionally, there may be instances where the noncitizen would also have to file the Form I-601, Application for Waiver of Grounds of Inadmissibility.

162.   See, e.g., September 2021 Guidelines, supra note 81.

163.   See 78 FR 536 (Jan. 6, 2013).

164.   See 8 CFR 212.7(e)(12)(i) (noting the conditions that must be satisfied for the provisional unlawful presence waiver to take effect).

165.   8 CFR 212.7(e) .

166.   See INA sec. 240A(b)(1)(A), 8 U.S.C. 1229b(b)(1)(A) .

167.   See INA sec. 201(b)(2)(A)(i), 8 U.S.C. 1151(b)(2)(A)(i) ; 8 CFR 204.1(a)(1) .

168.   See, e.g., INA sec. 245(c)(2), 8 U.S.C. 1255(c)(2) .

169.   See Section V.A. of this notice for the full list of disqualifying criminal convictions.

170.   See id. for a list of factors USCIS may consider in determining whether the requestor has overcome the presumption.

171.  There is an exception for border security concerns for stepchildren who otherwise meet the criteria for parole in place under this process.

172.   See Historical National Median Processing Time (in Months) for All USCIS Offices for Select Forms by Fiscal Year, available at https://egov.uscis.gov/​processing-times/​historic-pt .

173.   See, e.g., Implementation of a Family Reunification Parole Process for Colombians, 88 FR 43591 (July 10, 2023); Implementation of a Family Reunification Parole Process for Ecuadorians, 88 FR 78762 (Nov. 16, 2023); Implementation of a Family Reunification Parole Process for Salvadorans, 88 FR 43611 (July 10, 2023); Implementation of a Family Reunification Parole Process for Guatemalans, 88 FR 43581 (July 10, 2023); Implementation of a Family Reunification Parole Process for Hondurans, 88 FR 43601 (July 10, 2023); Implementation of Changes to the Cuban Family Reunification Parole Process, 88 FR 54639 (Aug. 11, 2023); Implementation of Changes to the Haitian Family Reunification Parole Process, 88 FR 54635 (Aug. 11, 2023).

174.   See Section V.A. of this notice for a list of examples of information that may be relevant to DHS in its determination as to whether the requestor has overcome the presumption of ineligibility.

175.  DOS also requests applicants or beneficiaries of certain immigration benefit requests submit Form I-134 in certain circumstances.

176.   See 8 CFR 213a.3(e)(2)(i) .

177.   See Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), Public Law 104-193 , title IV, 110 Stat. 2105, 2260-77 (Aug 22, 1996).

178.   8 U.S.C. 1613 .

179.  OHSS Analysis, supra note 3, tbl. 5.

180.   See Refugee Education Assistance Act of 1980, Public Law 96-422, sec. 501 ( 8 U.S.C. 1522 note ); 8 CFR 212.5(h) ; see also U.S. Dep't of Health and Human Services, Office of Refugee Resettlement, Benefits for Cuban/Haitian Entrants (Fact Sheet), available at https://www.acf.hhs.gov/​orr/​fact-sheet/​benefits-cuban/​haitian-entrants .

181.   See Public Law 109-13 , div. B, secs. 201-207 (codified at 49 U.S.C. 30301 note ); see also 6 CFR pt. 37 .

182.   See, e.g., Zachary Liscow and William Woolson, Does Legal Status Matter for Educational Choices? Evidence from Immigrant Teenagers, American Law and Economics Review (Dec. 11, 2017), available at https://dx.doi.org/​10.2139/​ssrn.3083026 .

183.  DHS cannot accurately predict the behavior of the affected population and hence cannot accurately forecast how many individuals would choose to pursue this policy. The two population scenarios can therefore better inform stakeholders of possible impacts, showing estimated impacts if less (more) individuals than the point estimate of 550,000 choose to pursue this policy.

184.  Bryan Baker and Robert Warren, Estimates of the Unauthorized Immigrant Population Residing in the United States: January 2018-January 2022, available at https://ohss.dhs.gov/​topics/​immigration/​unauthorized-immigrants/​estimates-unauthorized-immigrants (last visited June 17, 2024).

185.  This rate is on average 12%. Source: Migration Policy Institute, Profile of the Unauthorized Population: United States, available at https://www.migrationpolicy.org/​data/​unauthorized-immigrant-population/​state/​US (last visited June 17, 2024).

187.  In 2023, the labor force participation rate of the foreign born increased to approximately 67 percent (rounded value). See BLS Foreign-Born Workers: Labor Force Characteristics—2023 (May 21, 2024) https://www.bls.gov/​news.release/​archives/​forbrn_​05212024.pdf .

Calculation: 350,000 * 67 percent = 234.500, and 750,000 * 67 percent = 502,500.

188.  Nolan G. Pope, The Effects of DACAmentation: The Impact of Deferred Action for Childhood Arrivals on Unauthorized Immigrants, Journal of Public Economics, vol. 143, 2016: 98-114.

189.  Pan, Y. The Impact of Legal Status on Immigrants' Earnings and Human Capital: Evidence from the IRCA 1986. J. Labor Res. 33, 119-142 (2012).

190.  Orrenius, Pia M., and Madeline Zavodny. 2015. “The Impact of Temporary Protected Status on Immigrants' Labor Market Outcomes.” American Economic Review, 105(5): 576-80.

191.  Despite being labeled as a “wage penalty,” such estimates are generally reported as a percentage of earnings before work authorization, rather than after.

192.   See George J. Borjas and Hugh Cassidy, The wage penalty to undocumented immigration, Lab. Econ. 61, art. 101757 (2019) (hereinafter Borjas and Cassidy (2019)), https://scholar.harvard.edu/​files/​gborjas/​files/​labourecon2020.pdf .

193.   Id.

194.  Francesc Ortega and Amy Hsin, Occupational barriers and the productivity penalty from lack of legal status, https://docs.iza.org/​dp11680.pdf Labour Economics 76 (2022): 102181, https://www.sciencedirect.com/​science/​article/​abs/​pii/​S0927537122000720 .

195.  Albert, Cristoph The Labor Market Impact of Immigration: Job Creation versus Job Competition, American Economic Journal: Macroeconomics 13(1) 2021, https://pubs.aeaweb.org/​doi/​pdfplus/​10.1257/​mac.20190042 .

196.  Kossoudji & Cobb-Clark Coming Out of the Shadows: Learning About Legal Status and Wages from the Legalized Population, Lab. Econ. 20(3) 2002, https://www.journals.uchicago.edu/​doi/​epdf/​10.1086/​339611 .

197.   Id.

198.  Evin Millet and Jacquelyn Pavilon, Demographic Profile of Undocumented Hispanic Immigrants in the United States (Oct. 14, 2022), at https://cmsny.org/​publications/​hispanic-undocumented-immigrants-millet-pavilon-101722/​ . This report also provides that, in comparison, the mean and median wages for Hispanic documented immigrants are $40,032 and $30,000, respectively. Accordingly, the 2022 Center for Migration Studies (CMS) data indicate a wage gap of 40 percent for mean earnings and 20 percent for median earnings. However, DHS excludes the 20 percent to 40 percent wage gap identified in the report from this analysis because the CMS report compares only the average wages between documented and undocumented workers. The CMS report did not state it made any adjustments for other factors that may affect the differences in wages between the two populations, such as age, education, or skills. Without these adjustments, the wage gap between the two populations may not necessarily equate to the wage penalty for being undocumented.

Note: This study uses 2019 Census ACS data. Earnings to be adjusted to 2023 dollars.

199.  Estimates of the Unauthorized Immigrant Population Residing in the United States: January 2018-January 2022, DHS, Office of Homeland Security Statistics (May 6, 2024), at https://www.dhs.gov/​sites/​default/​files/​2024-05/​2024_​0418_​ohss_​estimates-of-the-unauthorized-immigrant-population-residing-in-the-united-states-january-2018%E2%80%93january-2022.pdf , Table 2 Unauthorized Immigrant Population Estimates by Top 10 Countries of Birth: 2018-2020 and 2022.

200.  Source: https://fred.stlouisfed.org/​series/​ECIWAG . Calculation: Earnings CY 2019 *(Average CY 2023 ECIWAG/Average CY 2019 ECIWAG) = $28,252 * 1.17874 = $33,302 (rounded).

201.   See Temporary Increase of the Automatic Extension Period of Employment Authorization and Documentation for Certain Employment Authorization Document Renewal Applicants, 89 FR 24628 (Apr. 8, 2024) (final rule), https://www.govinfo.gov/​content/​pkg/​FR-2024-04-08/​pdf/​2024-07345.pdf ; Classification for Victims of Severe Forms of Trafficking in Persons; Eligibility for “T” Nonimmigrant Status, 89 FR 34864 (Apr. 30, 2024) (final rule), https://www.govinfo.gov/​content/​pkg/​FR-2024-04-30/​pdf/​2024-09022.pdf .

202.  See Occupational Employment Statistics program, All Occupations, available at https://www.bls.gov/​oes/​2023/​may/​oes_​nat.htm#00-0000 . 10th percentile hourly wages used here are available in the “national_M2023_dl” excel file at https://www.bls.gov/​oes/​special.requests/​oesm23nat.zip (last visited July 11, 2024).

203.  The benefits-to-wage multiplier is calculated as follows: (total employee compensation per hour)/(wages and salaries per hour) = $42.48/$29.32 = 1.45 (rounded). See Bureau of Labor Stat., U.S. Dep't of Labor, “Employer Costs for Employee Compensation—December 2023,” https://www.bls.gov/​news.release/​archives/​ecec_​03172023.pdf (last visited July 11, 2024).

204.  Bureau of Labor Stat., U.S. Dep't of Labor, https://www.bls.gov/​news.release/​archives/​empsit_​01052024.htm (last visited July 10, 2024).

205.  Calculation: ((4% + 6%)/2 + 5% + 8% + (14% + 24%)/2)/4 = 9% (rounding).

206.  The prime-age (25-54) employment-to-population ratio has been over 80% since November 2022. https://fred.stlouisfed.org/​series/​LNS12300060 (last accessed July 10, 2024). Methods that isolate the effect of population aging (capturing, for example, aging within the 25-54 cohort) indicate that the adjusted employment-to-population ratio is at historical highs. https://www.whitehouse.gov/​cea/​written-materials/​2023/​07/​27/​labor-market-indicators-are-historically-strong-after-adjusting-for-population-aging/​ . Other measures of full employment provide evidence that there is not substantial slack in the labor market; for example, in the July 2024 Summary of Economic Projections of the Board of Governors of the Federal Reserve System, the unemployment rate is projected to remain below the longer-run stable value in 2024. https://www.federalreserve.gov/​monetarypolicy/​2024-07-mpr-part3.htm .

207.  Not all of these earnings are retained by workers; some are taxed, both through payroll taxes and other taxes, as previously discussed.

208.   See, e.g., David Card, Who Set Your Wage?, American Economic Review, vol. 112, no. 4, April 2022: 1075-90.

209.  For example, without this policy and all else equal, stepchildren that become adults and become independent of parents would not have access to public assistance program only available to authorized noncitizens or naturalized citizens. The same could apply in the cases of divorce.

210.  Caitlin Patler and Whitney Laster Pirtle, From Undocumented to Lawfully Present: Do Changes to Legal Status Impact Psychological Wellbeing Among Latino Immigrant Youth Adults?, Social Science & Medicine, vol. 199 (2018): 39-48.

211.  Linea Hasager, Does Granting Refugee Status to Family-Reunified Women Improve Their Integration?, Journal of Public Economics, vol. 234 (2024): 105119.

212.  Elizabeth U. Cascio, Paul Cornell and Ethan G. Lewis, The Intergenerational Effects of Permanent Legal Status, NBER Working Paper No. 32635 (June 2004), https://www.nber.org/​papers/​w32635 .

213.  Figlio, David, Jonathan Guryan, Krzysztof Karbownik, and Jeffrey Roth. 2014. “The Effects of Poor Neonatal Health on Children's Cognitive Development.” American Economic Review 104(12): 3921-3955.

214.  Behrman, Jere R. and Mark R. Rosenzweig. 2004. “Returns to Birth Weight.” Review of Economics and Statistics. 86(2): 586-601; Black, Sandra E., Paul J. Devereux, and Kjell G. Salvanes. 2007. “From the Cradle to the Labor Market? The Effect of Birth Weight on Adult Outcomes.” Quarterly Journal of Economics 122(1): 409-439; Philip Oreopoulos, Mark Stabile, Randy Walld, and Leslie L. Roos, Short-, Medium-, and Long-Term Consequences of Poor Infant Health: An Analysis Using Siblings and Twins, Journal of Human Resources, January 2008, 43 (1) 88-138; Royer, Heather. 2009. “Separated at Girth: U.S. Twin Estimates of the Effects of Birth Weight.” American Economic Journal: Applied Economics 1(1): 49-85.

215.  Estimated burden hours, subject to revision based on public comments.

216.   See USCIS, Form I-765, Instructions for Application for Employment Authorization, OMB Control Number 1615-0040 (expires Feb. 28, 2027), https://www.uscis.gov/​sites/​default/​files/​document/​forms/​i-765instr.pdf (last visited July 11, 2024).

217.   See USCIS, Form G-1055, Fee Schedule, Effective April 1, 2024, p. 33 of 39, https://www.uscis.gov/​sites/​default/​files/​document/​forms/​g-1055.pdf (last visited July 11, 2024).

218.   See USCIS, Form I-485, Instructions for Application to Register Permanent Residence or Adjust Status, OMB Control Number 1615-0023 (expires Feb. 28, 2026), https://www.uscis.gov/​sites/​default/​files/​document/​forms/​i-485instr.pdf (last visited July 11, 2024).

219.   See USCIS, Form G-1055, Fee Schedule, Effective April 1, 2024, p. 14 of 39, https://www.uscis.gov/​sites/​default/​files/​document/​forms/​g-1055.pdf (last visited July 11, 2024).

220.   See USCIS, Form I-130, Instructions for Form I-130, Petition for Alien Relative, and Form I-130A, Supplemental Information for Spouse Beneficiary, OMB Control Number 1615-0012 (expires Feb. 28, 2027), https://www.uscis.gov/​sites/​default/​files/​document/​forms/​i-130instr.pdf (last visited July 11, 2024).

221.   See USCIS, Form G-1055, Fee Schedule, Effective April 1, 2024, p. 7 of 39, https://www.uscis.gov/​sites/​default/​files/​document/​forms/​g-1055.pdf (last visited July 11, 2024).

222.  DHS assumes the preparers with similar knowledge and skills necessary for filing an application have average wage rates equal to the average lawyer wage of $84.84 per hour. DHS adjusts by the benefits-to-wage multiplier for a total compensation rate of 84.84 * 1.45 = $123.02 (rounded). See Bureau of Labor Stat., DOL, Occupational Employment and Wage Statistics, “Occupational Employment and Wages, May 2023, 23-1011 Lawyers,” https://www.bls.gov/​oes/​2023/​may/​oes231011.htm .

223.  Source: OP&S, PRD, C3. Queried July 17, 2024.

224.  A mileage rate for travel-related automobile costs is assumed. A rate of $0.625 per mile is adopted from the U.S. General Services Administration website at https://www.gsa.gov/​travel/​plan-book/​transportation-airfare-pov-etc/​privately-owned-vehicle-mileage-rates/​pov-mileage-rates-archived for privately owned vehicle mileage reimbursement rates. Rate effective July 1, 2022.

225.   See Employment Authorization for Certain H-4 Dependent Spouses, 80 FR 10284 (Feb. 25, 2015); Provisional and Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives, 78 FR 536 , 572 (Jan. 3, 2013).

226.  Source: USCIS, DHS, Instructions for Application to Register Permanent Residence or Adjust Status (Form I-485), OMB No. 1615-0023 (expires Feb. 28, 2026), https://www.uscis.gov/​sites/​default/​files/​document/​forms/​i-485instr.pdf .

227.  Calculations: (((50 * $0.625) + ((2.5+1.17) * $18.67))) = $99.77 (rounded).

228.  DHS cannot accurately and confidently estimate how many potential waivers could be granted across all of the required forms. For the purposes of this FRN, DHS assumes that if requestors have the ability to submit a new form I-131F and pay the $580 fee, they would generally have the ability to pay the rest of the required form filing fees in this process created by this policy and would generally not qualify for any fee waivers. Nevertheless, if some fee waivers were to be granted, the total amount of transfer payments would not change, but the fee waivers would represent a transfer from the USCIS-fee paying population to the requestors.

229.  Internal Revenue Service, Federal Income Tax Rates and Brackets, https://www.irs.gov/​filing/​federal-income-tax-rates-and-brackets .

230.   See, e.g., Tonya Moreno, “Your Guide to State Income Tax Rates,” The Balance, https://www.thebalance.com/​state-income-tax-rates-3193320 (last updated July 11, 2024).

231.  Internal Revenue Service, Topic No. 751 Social Security and Medicare Withholding Rates, https://www.irs.gov/​taxtopics/​tc751 (last updated July 11, 2024).

232.   See BLS, Employment Projections (Sept. 2020), Occupations with the most job growth, Table 1.4. Occupations with the most job growth, 2019 and projected 2029, available at https://www.bls.gov/​emp/​tables/​occupations-most-job-growth.htm .

233.   See, e.g., National Academies, The Economic and Fiscal Consequences of Immigration (2017), https://www.nationalacademies.org/​our-work/​economic-and-fiscal-impact-of-immigration .

234.  NAS, The Economic and Fiscal Consequences of Immigration (2017), at 195 https://www.nap.edu/​catalog/​23550/​the-economic-and-fiscal-consequences-of-immigration .

235.   Id. at 5.

236.   Id. at 5-6.

237.   Id. at 5.

238.  Joan Monras, Immigration and Wage Dynamics: Evidence from the Mexican Peso Crisi, Journal of Political Economy, 2020, vol. 128, no. 8: 3017-89.

239.  NAS Report at 6-7.

240.  Giovanni Peri, Derek Rury, and Justin C. Wiltshire, The Economic Impact of Migrants from Hurricane Maria, Journal of Human Resources (2022): 0521-11655R1.

241.  Clemens, M.A., & Hunt, J. (2019). The Labor Market Effects of Refugee Waves: Reconciling Conflicting Results. ILR Review, 72(4), 818-857; Giovanni Peri and Vasil Yasenov, The Labor Market Effects of a Refugee Wave: Synthetic Control Method Meets the Mariel Boatlift, Journal of Human Resources, vol. 54, no. 2 (2019): 267-309.

242.  Alessandro Caiumi and Giovanni Peri, Immigration's Effect on US Wages and Employment Redux, NBER Working Paper No. 32389 (Apr. 2024), https://www.nber.org/​papers/​w32389 .

243.   5 U.S.C. 553(b)(A) .

244.   See Lincoln v. Vigil, 508 U.S. 182, 197 (1993) (quoting Chrysler Corp. v. Brown, 441 U.S. 281, 302 n.31 (1979)).

245.  A general policy statement typically uses permissive, rather than binding, language that leaves the agency free to exercise discretion. See, e.g., Nat'l Mining Ass'n v. McCarthy, 758 F.3d 243, 251-52 (D.C. Cir. 2014) (distinguishing legislative rules from general statements of policy, observing that “[a]n agency action that merely explains how the agency will enforce a statute or regulation—in other words, how it will exercise its broad enforcement discretion or permitting discretion under some extant statute or rule—is a general statement of policy”); Appalachian Power Co. v. EPA, 208 F.3d 1015, 1023 (D.C. Cir. 2000) (rejecting the EPA's characterization of its document as guidance exempt from notice-and-comment rulemaking, reasoning that the guidance “commands, . . . requires, . . . orders, [and] dictates”); Cmty. Nutrition Inst. v. Young, 818 F.2d 943, 946 (D.C. Cir. 1987) (per curiam) (noting as primary considerations whether the agency action (1) “impose[s] any rights and obligations,” or (2) “genuinely leaves the agency and its decisionmakers free to exercise discretion” (quotation marks omitted)).

246.   See, e.g., Cuban Family Reunification Parole Program (Nov. 21, 2007), supra note 65; Central American Minors Parole Program (Dec. 1, 2014), discussed at 82 FR 38926 ; Haitian Family Reunification Parole Program (Oct. 27, 2014), supra note 66; Filipino World War II Veterans Parole Policy (May 9, 2016), supra note 67; Implementation of a Family Reunification Parole Process for Colombians, et al. (July 10-Aug. 11, 2023), supra notes 68-72. Prior to these parole policy statements, even after Congress's limiting amendment to the parole statute in 1996 to require “case-by-case” consideration, the parole authority continued to be used expansively to create new parole programs and processes. In 2000, for example, the parole authority was used to entirely replace the statutorily sunsetting Visa Waiver Pilot Program under INA section 217, in order to provide the significant public benefit of avoiding the wholesale disruption of international travel and commerce, and the serious harm to the U.S. economy and foreign relations that would have been caused by suddenly imposing visa requirements on visitors for business or pleasure from most developed countries. See, e.g., Visa Waiver Pilot Program Expires; INS Puts In Place Interim Procedures, 77 Interpreter Releases 597 (May 8, 2000); Congressional Research Service, Visa Waiver Program (revised Aug. 1, 2016) at 29, available at https://crsreports.congress.gov/​product/​pdf/​RL/​RL32221/​42 . Under that parole process, tens of millions of foreign visitors were paroled into the United States on a case-by-case basis between May 1 and October 30, 2000, without rulemaking. Although DHS prescribed certain guidelines for determinations on parole from custody of certain noncitizens, see 8 CFR 212.5(b) , and established the international entrepreneur parole process, see 8 CFR 212.19 , through notice-and-comment rulemaking, this does not preclude the Department from electing, consistent with the APA, to forgo formal rulemaking. See, e.g., Hoctor v. U.S. Dep't of Agric., 82 F.3d 165, 171-72 (7th Cir. 1996) (observing that there is nothing in the APA that forbids an agency's use of notice-and-comment procedures even if not required under the APA, and that courts should attach no weight to an agency's varied approaches involving similar rules).

247.   Cent. Texas Tel. Coop. v. FCC, 402 F.3d 205, 214 (D.C. Cir. 2005) (cleaned up); accord Sec. Indus. and Fin. Mkts. Ass'n v. CFTC, 67 F. Supp. 3d 373, 423 (D.D.C. 2014) (citing cases).

248.   See 5 U.S.C. 553(a)(1) .

249.   Mast Indus., Inc. v. Regan, 596 F. Supp. 1567, 1582 (C.I.T. 1984) (quoting H.R. Rep. No. 79-1980, at 23 (1946)).

250.   See, e.g., Rajah v. Mukasey, 544 F.3d 427, 437 (2d Cir. 2008).

251.   See, e.g., The White House, Fact Sheet: The Los Angeles Declaration on Migration and Protection U.S. Government and Foreign Partner Deliverables (June 10, 2022), available at https://www.whitehouse.gov/​briefing-room/​statements-releases/​2022/​06/​10/​fact-sheet-the-los-angeles-declaration-on-migration-and-protection-u-s-government-and-foreign-partner-deliverables/​ .

252.  U.S. Dep't of State, Discussions with Mexican Officials on Migration at the Department of State (Jan. 20, 2024), available at https://www.state.gov/​discussions-with-mexican-officials-on-migration-at-the-department-of-state .

253.  Ministry of Foreign Affairs of Mexico, Visas: Important Information, available at https://embamex.sre.gob.mx/​peru/​index.php/​sconsulares/​visas (last visited June 16, 2024).

254.  The White House, Mexico-U.S. Joint Communique, supra note 114.

255.  Manuel Rueda and Elliot Spagat, Colombia asks for legal status for its people already in US, Associated Press, Nov. 29, 2022, available at https://apnews.com/​article/​venezuela-colombia-caribbean-united-states-immigration-7ed5fcde20338d56b04ff56925e54aff .

256.  The Safe Mobility Initiative is one of the many ways the United States facilitates access to lawful pathways from partner countries in the region at no cost, so migrants do not have to undertake dangerous journeys in search of safety and better opportunities. See U.S. Safe Mobility Initiative—United States Department of State, Bureau of Population, Refugees, and Migration, Safe Mobility Initiative, available at https://www.state.gov/​refugee-admissions/​safe-mobility-initiative/​ (last visited July 24, 2024).

257.   Eliminating Exception to Expedited Removal Authority for Cuban Nationals Encountered in the United States or Arriving by Sea, 82 FR 4902 (Jan. 17, 2017).

258.   See Implementation of a Parole Process for Cubans, 88 FR 1266 (Jan. 9, 2023); Implementation of a Parole Process for Haitians, 88 FR 1243 (Jan. 9, 2023); Implementation of a Parole Process for Nicaraguans, 88 FR 1255 (Jan. 9, 2023); and Implementation of Changes to the Parole Process for Venezuelans, 88 FR 1279 (Jan. 9, 2023).

259.   See U.S. Dep't of Homeland Security, DHS Announces Family Reunification Parole Processes for Colombia, El Salvador, Guatemala, and Honduras (July 17, 2023), https://www.dhs.gov/​news/​2023/​07/​07/​dhs-announces-family-reunification-parole-processes-colombia-el-salvador-guatemala ; see also Implementation of a Family Reunification Parole Process for Colombians, et al., supra notes 68-72.

260.   See 5 CFR 1320.8(d) and 1320.10(e) .

[ FR Doc. 2024-18725 Filed 8-19-24; 8:45 am]

BILLING CODE P

• Executive Orders

Reader Aids

Information.

• About This Site
• Legal Status
• Accessibility
• No Fear Act
• Continuity Information

Sweden fact of the day

• Current Affairs

…the country’s migration minister is celebrating the fact  Sweden  has “negative net immigration”, with more people thought to be leaving the country than entering for the first time in more than half a century. “The number of asylum applications is heading towards a historically low level, asylum-related residence permits continue to decrease and for the first time in 50 years Sweden has net emigration,” Maria Malmer Stenergard announced earlier this month. Sweden’s Moderate-led government, which is supported by the far-right Sweden Democrats, has pursued increasingly restrictive asylum policies, including plans for a  “snitch law”  that would legally require public sector workers to report undocumented people. …the UN high commissioner for refugees confirmed the trend. It was surprising, the UNHCR said, that while global displacement was at an all-time high, the number of people seeking asylum in Sweden was at an all-time low. “The statistics show Sweden having a net outflow of immigrants for the first time in decades,” Annika Sandlund, the UNHCR representative to the Nordic and Baltic countries, told the Guardian.

Here is the full Guardian piece .  I think this is all going to work out reasonably well.

Marginal Revolution University

Learn more about Mercatus Center Fellowships

Subscribe via email.

Enter your email address to subscribe to updates.

Email Address

Alex Tabarrok Email Alex Follow @atabarrok

Tyler Cowen Email Tyler Follow @tylercowen

Webmaster Report an issue

• Blogs We Like
• Interesting People & Sites

Our Web Pages

• Alex Tabarrok's Home Page
• Alex's TED talk, how ideas trump crises
• Conversations with Tyler
• FDAReview.org
• Tyler Cowen's Personal Web Page
• Tyler's ethnic dining guide
• Apply to Emergent Ventures

Modern Principles of Economics