REVERSING years of its own jurisprudence and in opposition to various Federal Court interpretations, the Board of Immigration Appeals issued a case holding that a departure from the US pursuant to a grant of an advance parole travel document is not a “departure” for the purposes of triggering the “unlawful presence” bar to admission. The case, Matter of Arrabally and Yerrabelly, 25 I & N Dec. 771 (BIA 2012) restores some common sense and fairness to the law, which many viewed as unfairly penalizing those who were required to travel during the pendency of their application for adjustment of status, after having been “unlawfully present” in the US prior to filing. Under the new ruling, applicants for adjustment of status will be free to travel without incurring a 3 or 10 year bar to admission in the US or requiring a hardship waiver of the penalty.
Advance parole has long been used as a temporary travel document to allow people present in the US pursuing an application for adjustment of status (and sometimes asylum) to leave the US and return after a short trip abroad to continue processing their application and avoid abandoning the application. When Congress passed the “3 and 10 year bar” in 1996, however, the use of advance parole became restricted, since many applicants for adjustment of status may have already accrued more than one year of “unlawful presence” prior to filing their applications. Departing the US in these circumstances, even with advance parole, would trigger a ten year bar from admission, such that the returning parolee would be ineligible to adjust status, unless they were approved for a waiver of the ten-year bar by demonstrating that their US Citizen or permanent resident spouse or parent would suffer “extreme hardship” if they were refused admission.
These harsh consequences could only be avoided by remaining in the US until the USCIS granted the adjustment of status application, such that many applicants could not go home for family emergencies or holidays. Using advance parole became a lethal trap for the unwary: a person who went home with a USCIS-issued advance parole would find himself ineligible for adjustment of status upon return! Recognizing the patent unfairness of this application of the rule, the BIA in Arrabally and Yerrabelly determined that departing with an advance parole is not considered a “departure” for the purposes oaf the 3 and 10 year bar.
Such departures, fully authorized by the USCIS, where the applicant clearly intends to return to the US to complete the processing of his application for adjustment of status, will no longer trigger the 3 and 10 year bar and waiver applications will no longer be necessary to secure approval of these applicants’ green cards.
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Daniel P. Hanlon is a California State Bar Certified Specialist in Immigration and Nationality Law and a principal of Hanlon Law Group, PC, located at 225 S. Lake Ave., 11th Floor in Pasadena, California; Tel. No. (626) 585-8005. Hanlon Law Group, PC is a “full-service Immigration Law firm.” E-mail: [email protected] and www.hanlonlawgroup.com.
