AS AN immigration officer, I had many emotional experiences and one of my most difficult experiences was when an Iranian applicant came to the Service and requested an advanced parole travel document to return home to visit her dying father. With her adjustment of status pending and processing taking years, she could not wait for her green card because her father was in critical condition.
By statute, an advanced parole can be granted for people with pending adjustment of status applications. However, an applicant would be found inadmissible to the United States for 3 years if he/she travelled outside of the United States after remaining in the US out of status for over 180 days. If the applicant was out of status for over 365 days, the bar of inadmissibility would be 10 years. I explained to that particular applicant that the law, at that time, had recently changed and that she would be subject to unlawful presence if she left the United States. I did not issue her an advanced parole because she would be barred for 10 years. As a result, she cried and blamed me for not allowing her to visit her father one last time. I sympathized for her. I felt bad for her. I remember telling her, “If the laws were different, I would grant you the advance parole to travel in a heartbeat.” Unfortunately at that time, the laws would have subjected her to inadmissibility which could have barred her from obtaining her green card.
For many years, people have dealt with similar dilemmas. Despite being out of status and the possibility of unlawful presence, USCIS has granted advance parole permits for adjustment of status applicants. Although unlawful presence warnings are disclosed on the USCIS website and advanced parole document, many applicants have failed to realize the risks of travelling on these advanced paroles. The law seemed very unfair. Many people wondered why they were penalized by travelling when it was authorized by the government. Everything changed on April 17, 2012.
On April 17, 2012, the Board of Immigration Appeals (“BIA”) issued a precedent decision addressing the unlawful presence inadmissibility. In the Matter of Arrabally, the BIA ruled that travelling based on a grant of advance parole did not constitute a “departure” for the purposes of unlawful presence. The result is that an applicant with more than 180 days of unlawful presence does not become subject to the 3 or 10 year bar by leaving under a grant of advanced parole.
This new precedent essentially changes the USCIS policies in determining unlawful presence. Travelling with advance parole is no longer a danger. The BIA has finally recognized the apparent unfairness in granting advance parole, but triggering unlawful presence rules. Current applicants for adjustment of status can now travel to attend to any family emergencies or for the holidays without having to worry about unlawful presence.
This new decision only addresses the issue of unlawful presence in relation to travelling with advance parole. It does not change the law on any other inadmissibilities. Before you apply for adjustment of status and plan to travel, you should consult with a competent immigration attorney to assess your case to prevent any misunderstandings or delays. We understand the difficulties and complexities of the US immigration laws. At Wilner & O’Reilly, we have former immigration officers, board certified specialists and experienced attorneys who can help you with your immigration case. Schedule your free consultation today.
* * *
Kelly O’Reilly is a nationally known immigration expert and former immigration officer. He is a highly sought after speaker on immigration and employment compliance issues. Mr. O’Reilly serves as the current chair of the Riverside County Bar Association Immigration section and is a partner in the full-service immigration firm of Wilner & O’Reilly where he provides free consultations. Mr. O’Reilly can be contacted at (562) 207-6789 or he welcomes email inquiries at [email protected].
