By Joseph Elias & Nancy E. Miller
In order to complete the green card administrative process in the United States, immigrants must file an adjustment of status application typically based on an approved immigrant visa petition. Not all immigrants qualify for adjustment of status. First and foremost, adjustment of status is limited to applicants who have been inspected and admitted or paroled into the United States. This means immigrants who entered without inspection are generally not eligible to adjust status. Adjustment of status is also unavailable to most applicants who have violated their non-immigrant status or whose non-immigrant status has expired. For family-based preference categories, just one day out of status is enough to render one ineligible to adjust status. For employment-based preference categories, adjustment of status is unavailable to those have failed to maintain status for more than 180 days.
Entry without inspection or expiration of status shuts the door to adjustment of status for most applicants unless they can be readmitted or paroled into the United States. However, most in this situation have also accrued enough unlawful presence that departing the U.S. will trigger 3 or 10 year bars from returning. This makes it unrealistic to depart the U.S.
But, a combination of immigration benefits and court decisions do provide a path to adjustment of status for some. The first piece of the puzzle comes from the Board of Immigration Appeals (BIA) which held that the 3 and 10 year bars are not triggered by immigrants who depart the U.S. and are readmitted under Advance Parole travel authorization. In addition, Citizenship & Immigration Services (CIS) accepts readmission to the U.S. under Advance Parole as meeting the adjustment of status prerequisite for being inspected and paroled. This means a path is now open to adjust status for immigrants who have entered without inspection or whose status has lapsed but who are eligible to obtain Advance Parole.
One primary group of immigrants eligible to apply for Advance Parole are young immigrants granted Deferred Action for Childhood Arrivals (DACA). DACA recipients are eligible for Advance Parole if they can demonstrate international travel is needed for educational, humanitarian, or employment purposes. Humanitarian purposes include visiting relatives such as parents, grandparents, or siblings who the applicant has not seen in many years.
Many DACA recipients were brought to the U.S. without inspection and are now married to U.S. citizens. Or, they are the beneficiaries of employment and family-based immigrant visas but their non-immigrant status has long since expired, thus making them ineligible to adjust under normal procedures. The ability to obtain Advance Parole and travel internationally allows them to be paroled back into the U.S. Also, no unlawful presence accrues when one is paroled into the U.S. So, the obstacles to adjustment of status have now been removed for DACA recipients.
Immigrants granted Temporary Protected Status (TPS) are also eligible for Advance Parole travel authorization. They, like DACA recipients, can cure the defect of entering without inspection or expiration of status, without triggering unlawful presence bars, by being paroled back into the U.S. The option of adjustment of status now becomes available to them as well.
Adjustment of Status requires an approved immigrant visa petition and visa availability in the preference categories. DACA and TPS recipients need employers or qualified family members to petition them as well as admission through advanced parole. Those who do not have immigrant visas filed or approved for them should still work towards being paroled back into the U.S. This is because being inspected and paroled will leave a path open to adjustment of status in the future. For example, a DACA recipient can have his or her employer petition him now for an employment-based petition now. In a few years the visa number will be available. If the DACA recipient has, at any point prior to that, obtained advance parole, and then been paroled back into the U.S., he or she may be able to adjust status under the employment visa.
Advance parole is therefore not only of use to those with approved immigrant visa petitions. But, it is also an investment that DACA and TPS recipients can avail of in the future. Before any DACA or TPS recipients plans to depart the U.S., they should consult with knowledgeable and experienced immigration lawyers to determine other factors that may impact their case.