Most people filing for a green card in the United States apply for work authorization and a reentry document know as Advanced Parole. They are under the misconception that Advanced Parole allows them to freely reenter the U.S without hindrance and do not realize the dangers associated with trying to reenter with this document.
Advanced Parole is not an absolute guarantee or a right for one to reenter the U.S. Unfortunately, many people are beginning to discover this when they attempt to return to the U.S. Chinese and Filipino employment-based immigrants, in particular, are being turned away and forced to abandon their green card applications when attempting to enter on Advanced Parole. The INS is taking advantage of extremely broad powers granted to its Airport Inspectors when reviewing aliens seeking admission into the U.S. Aliens entering on Advanced Parole fall into this category and the sweeping powers of the Airport Inspectors.
In 1997, the Immigration law was changed to include a provision to allow Airport Inspectors to screen arriving aliens for admission into the United States. Airport Inspector were given the power to deport aliens whom they determined did not have the proper documentation or made a willful misrepresentation/fraud to procure an immigration benefit. The Inspector could place that person into Expedited Removal and deport them from the U.S. There is no appeal from this determination to the Immigration Courts or the Board of Immigration Appeals or the Federal Courts.
If an alien is able to show he lived in the U.S. continuously for 2 years immediately before the determination is made, he cannot be put into Expedited Removal and must be placed into regular deportation proceedings. Regular deportation proceedings afford one the ability to seek administrative appeals from the Immigration Courts up to the U.S. Supreme Court if necessary. Aliens seeking asylum may not be placed in Expedited Removal either. If the alien seeks asylum, INS is required to hold that person in custody.
INS has taken these broad powers to rid itself of what it sees as problem cases, especially with Filipino and Chinese cases. Because of its past experience of fraud from these 2 countries, INS watchesFilipino and Chinese with a suspicious eye. It alerts its Airport Inspectors that it suspects fraud in the underlying case, and when the alien attempts to enter on Advanced Parole, he is sent to Deferred Inspection where a more detailed interview is conducted.
A typical example is an alien whose company has petitioned for his green card as a multinational executive. He attempts to enter the U.S. on Advanced Parole. That person usually first entered the U.S in L-1A status; then, his company filed an I-140 immigrant visa petition on his behalf. The I-140 is usually approved, and the alien then files for Adjustment of Status (green card application), work authorization, and Advanced Parole. He usually thinks that because he has Advance Parole he can travel in and out of the U.S. at his leisure and with INS’s blessing while the green card is processing. At the California Service Center the green card processing is currently taking over two years-a long period of time during which the alien will likely have to leave the U.S. for business or personal reasons. In fact, he may have left and reentered several times successfully on Advanced Parole. The danger comes when his case is actually being reviewed by INS adjudicators who are already suspicious of Chinese and Filipino petitions.
The adjudicators notify the airports that they suspect fraud and if the person tries to reenter they should be stopped. The alien is now flagged. When he attempts to reenter, he is placed into deferred inspection and will be questioned as to his I-140 petition. Usually, he is given time to gather and submit documents supporting his claim that he is a multinational executive. The Airport Inspector will review the evidence submitted, and if he believes that there is fraud, the alien will ordered removed. This determination can only be appealed to his supervisor and cannot be reviewed by the courts. Once ordered removed from the U.S., that alien has a 5 year bar from applying for any kind of entry into the U.S.!
INS employs this process to rid itself of what INS believes are problem cases. In the above example, the Airport Inspector informs the alien that he has made a determination that there was an attempt to gain an immigration benefit through fraud. However, he will make a deal with the alien. If the alien voluntarily withdraws his application to enter the U.S. and withdraws both his I-140 immigrant visa petition and his Adjustment of Status application, the Airport Inspector will not place him into Expedited Removal. If the alien still wishes to go forward and not take the deal, the Airport Inspector will continue the case into Expedited Removal, and based on his determination, order the alien removed. He will have to take the alien into custody and have him deported. He also informs the alien that once ordered removed, he will have a 5 year bar from applying for any type of visa to the U.S. The alien upon hearing this has only 2 options: withdraw his application for green card and entry, or fight a “no-win” battle and be taken into custody until he is deported.
Even if the alien files for asylum or establishes he is entitled to regular deportation proceedings, he will still be taken into custody. INS is using a subterfuge to deny the alien of his procedural right to a Notice of Intent to Revoke. If the branch of INS that is adjudicating the green card application suspects fraud in an underlying immigrant application, it is required to provide written notice in the form of a Notice of Intent to Revoke (NOIR) to the alien and give him time to respond to the allegations. If INS is unsatisfied with the response and revokes, the INS revocation can then be appealed to the Administrative Appeals Unit. INS is using deferred inspection for Advanced Parole as a loophole to circumvent this process. In the deferred inspection scenario, INS threatens immediate custody based on what it perceives as “fraud”.
The alien is forced to abandon his application and is not given a fair opportunity to disprove the allegations of fraud. Remember, the Airport Inspector, at this point, has already made a determination of fraud and no amount of evidence will convince him otherwise. There is no appeal available to the Airport Inspector’s determination of fraud. Faced with fighting for their green cards in INS custody or abandoning everything, many immigrants chose not to fight. They withdraw their applications and leave the U.S. hoping to be able to start their green card application anew. The INS benefits by not having to file an NOIR and fighting an appeal.
Another group of aliens duped by Advanced Parole are those who have been unlawfully present in the U.S. If their unlawful presence is over 180 days but less than 1 year, they face a 3 year bar from reentering the U.S. If their unlawful presence is over 1 year, they then face a 10 year bar. Many aliens in this category have applied for adjustment to green cards under 245(i) which allows them to excuse their unlawful presence by paying a $1,000 penalty. Some of these aliens think that this also excuses the 3 and 10 year bars which are triggered once they leave the U.S. Many also think that because INS approved their Advanced Parole, it has given them permission to leave the U.S. and reenter without a problem. They are sadly mistaken and usually don’t find out until they attempt to reenter on Advanced Parole. The Airport Inspector cannot and will not admit them because, once they left the U.S., they became subject to the 3 and 10 year bars.
While Advanced Parole is a reentry document issued by INS, it is not carte blanche. Chinese and Filipino employment-based green card applicants should be very wary about using this document to travel on. Multinational managers should keep their L-1A petitions current for as long as possible. They should keep their L-1A visas up to date and travel on the L-1 visa over Advanced Parole. Anyone waiting for 245(i) green card processing should not leave the United States until they receive their green card.
Before leaving the U.S., green card applicants should consult with an Immigration Attorney to assess their underlying petitions. If one’s case is weak, he risks losing his green card application. And while INS will state that a voluntary withdrawal of a green card application will result in no INS prejudice, most Consulates will be remiss to issue a visa to someone who has withdrawn a green card application. Consulates will be suspicious because a withdrawal, in their eyes, is a red flag indicating past immigration fraud. It is extremely difficult to compel Consulates to issue visas even with Federal Court intervention. Knowing this, one should carefully plan any travel outside the U.S. and reentry on Advanced Parole.