By Robert L. Reeves & Nancy E. Miller
It’s ironic! People can be so desperate to come to the United States that they commit acts that are completely out of character. They use someone else’s name. They misrepresent their marital status. Sometimes, they pay huge amounts of money to get across the border with false documentation or without documentation. And yet, after they have been here for a time, what is the thing they want most? To return home – not to stay but to see their loved ones. Here again, sometimes they are so desperate that they jump at the chance to return home without investigating the immigration ramifications of what they are about to do. The situation can be misleadingly dangerous for those who are leaving the United States with a form of documentation called Advance Parole.
In the majority of cases, in order to adjust status to that of lawful permanent resident (meaning complete the final processing for a green card without having to leave the country), the alien must be in status (the alien must also have a valid, approved, and currently available immigrant visa but that discussion is for another day).
However, there are two exceptions to the requirement that one must be in status in order to adjust status. The first is where one entered with inspection and is now attempting to adjust as the immediate relative of a United States citizen. An immediate relative is the spouse, under 21 year old child, or parent of a child who is over the age of 21. People in this category are entitled to adjust even if they are now out of status. The second exception is for those who are the beneficiary of a family or employment petition that was filed on or prior to April 30, 2001. Those people are grandfathered under an old law known as 245(i) which allows them to adjust even if they are out of status.
When an intending immigrant leaves the United States while he has an application of adjustment of status pending, he is considered to have abandoned that application. In order to prevent that from happening, the alien may apply for something called advance parole. Advance Parole allows the alien to leave the United States without abandoning the pending adjustment application. Upon return to the U.S., the alien is not admitted. Rather he is paroled into the U.S. This has problems in and of itself because, if the underlying application for adjustment is denied, the alien is placed into removal proceedings as an arriving alien. The type of relief that the immigration judge can grant is more limited to those who are arriving aliens than to those who are admitted.
However, the bigger and more common problem is that, by leaving the United States, the out of status alien may trigger the 3 and 10 year bars for unlawful presence. Because the alien has triggered the bar, he may be denied admission, despite the advance parole. Even if he is paroled in, he will have to file for a waiver of the unlawful presence bar. In order to do that, he will need to show that his inability to live in the United States will result in extreme hardship to his United States citizen spouse or parent. The hardship to United States citizen children does not count for this waiver.
Intending immigrants who receive advance parole reasonably believe that they have permission to return to the United States without a problem. While that belief is reasonable, it is not always true. Advance parole simply allows the alien to leave without abandoning the pending application for adjustment. It does not deal with or solve any of the other potential problems that may arise when the alien leaves the U.S. For that reason, no one who has been in the United States for any length of time should consider applying for advance parole before consulting with a knowledgeable and experienced immigration lawyer.