By Attorneys Robert L. Reeves and Lorena Larios Shah
As the Holiday travel season approaches, many individuals who have pending applications for immigration benefits are under the mistaken belief that they can travel outside of the United States. However, most individuals cannot depart the U.S. before getting an advance parole. An advance parole allows certain individuals who do not have a valid immigrant visa to reenter the U.S. after traveling abroad. The advance parole is obtained by filing Form I-131, Application for Travel Document, with the appropriate fee and supporting documents to the U.S. Citizenship and Immigration Services (USCIS).
Individuals required to get an advance parole before leaving the U.S. include those residing in the U.S. who have an application pending for adjustment of status, have been admitted as a refugee or have been granted asylum, have been granted temporary protected status, or have a pending asylum application. Note that this does not apply to those who have applied to adjust to permanent resident status and who maintain H-1B (Specialty Worker) or L-1 (Intracompany Transferee) status, or their dependents; those with a valid V nonimmigrant visa and have or obtain a valid V nonimmigrant visa before applying for readmission to the U.S.; and, K-3/K-4 non immigrants who have applied to adjust to permanent resident status and who have a valid K-3/K-4 nonimmigrant visa. A person who is in the U.S. illegally is not eligible for an advance parole.
Individuals applying for advance parole on the basis of a pending adjustment of status application must be approved for an advance parole before leaving the U.S. Otherwise, departing before the approval of the advance parole will allow the USCIS to terminate the pending application. It is also important to note that traveling outside the U.S. may have severe consequences for certain individuals who are in the process of adjusting their status.
For instance, those who depart the U.S. after being unlawfully present in the U.S. for certain periods of time may be barred from admission to legal permanent resident status even if they were granted an advance parole. Those unlawfully present in the U.S. for more than 180 days but less than one year will be deemed inadmissible for 3 years; those who have been unlawfully present in the U.S. for a year or more will be considered inadmissible for 10 years. Without advance parole or an H, L, V, K3 or K4 visas returning applicants will be denied re-admission to the United States. All individuals reentering the U.S. with an approved advance parole are still subject to immigration inspection at a port of entry to determine whether the person is admissible into the U.S.
Processing times for an advance parole may vary from 60 to 150 days, thereby requiring advance planning for applicants who plan to travel abroad. For those individuals with a travel emergency, the USCIS can grant emergency advance paroles on a case by case basis. Depending on the nature of the emergency, the processing time for an emergency advance parole may vary from one week to two weeks. In addition to filing the I-131 with the supporting documents, an emergency advance parole requires an explanation or other evidence demonstrating the circumstances that warrant issuance of the advance parole. For instance a letter from a doctor detailing the health condition of a relative or a death certificate are but two samples of the type of evidence the USCIS will demand.
An advance parole is often confused with a reentry permit. A reentry permit allows legal permanent residents (green card holders) to reenter the U.S. after having been outside of the U.S. for up to two years without being deemed to have abandoned their residency status. It is strongly encouraged to apply for this benefit before leaving the U.S.
If you have a pending application with the USCIS, it is very important to consult an attorney before making any travel plans. Happy holidays!