By Attorneys Steven J. Malm and Nancy E. Miller
For a long time, immigration attorneys advised their clients with prior unlawful presence in the United States not to travel on advance parole or to do so at their own peril. However, recent changes in law make such travel possible and even advisable in some situations to open a new path to a green card.
Conventional wisdom on advance parole travel began to change with a decision from the Board of Immigration Appeals in 2012. The Board created a change in immigration law applicable throughout the country. The Board held that persons who have been in the United States for over six months accruing unlawful presence do not trigger the 3 or 10-year inadmissibility bars if they travel on advance parole. Under prior law, any “departure” from the United States would automatically trigger these inadmissibility bars but the Board held that travel on advance parole does not constitute a departure.
Advance parole is permission obtained prior to travel that allows a person to leave and reenter the United States. Persons eligible to apply for advance parole include adjustment of status applicants, asylum applicants, TPS holders, and Deferred Action for Childhood Arrivals (DACA) recipients. According to statements from the Department of Homeland Security (DHS), recipients of Deferred Action for Parental Accountability (DAPA) will also be eligible to apply for advance parole when, and if, that program takes effect. Travel without advance parole generally results in abandonment of an adjustment application, and would even result in self-deportation for some.
Clearly, the ability to travel without incurring the 3 or 10-year bars represents a huge boon; however, another important benefit can flow from the Board’s decision. Persons who entered without inspection (i.e. without permission) and travelled on advance parole, upon reentering the United States via advance parole may become eligible to adjust status. Of course, they would also need to be petitioned as a United States citizen immediate relative. Parents, spouses and children under 21 of United States citizens are immediate relatives for petitioning purposes.
Generally, in order for a person to adjust status in the United States to that of a green card holder, he or she must have been inspected and admitted or paroled into the country. Colloquially, he or she must have entered legally. Legally means procedurally lawful—the person must have presented him or herself for inspection but need not have been asked any questions. Even persons who entered the United States using fraudulent documents, but presented themselves for inspection and were admitted, may adjust (albeit with an approved waiver for the misrepresentation). However, persons that have entered the country without inspection (EWI), barring an exception known as 245(i), do not qualify to adjust in the United States and must return to their home countries to request their green cards. When these persons travel on advance parole and later enter on parole they are no longer classified as EWI.
Immediate relatives of United States citizens may have other immigration relief available to them. The provisional waiver program came into being in 2013 permitting spouses of United States citizens to apply for “extreme hardship” waivers of the 3 and 10-year bars prior to departing the United States to obtain their immigrant visas. Recently, the Obama administration announced that the provisional waiver program would be expanded and that the extreme hardship standard would be clarified to provide greater consistency in adjudications. Many persons who might consider the strategy of adjusting after travel on advance parole also qualify for provisional waivers. Choosing between the two may depend on a variety of factors.
Before traveling on advance parole, persons would be well-advised to speak to an experienced and knowledgeable immigration attorney. While travel on advance parole will not trigger the 3 or 10-year bars, upon return, persons will still be screened by CBP for admissibility. Prior removal orders, criminal records, false claims to citizenship, and other grounds of inadmissibility may be revealed. In the worst case scenario, a person could be summarily removed.
For immediate relatives of United States citizens who have entered without inspection, travel on advance parole may open a new pathway to a green card through adjustment of status. DHS recently indicated that new guidance is forthcoming to clarify that, consistent with the Board’s decision, individuals that travel on advance parole do not trigger the 3 or 10-year bars. The Board’s decision and expected policy memo from the Obama Administration gives new promise about the applicability of this change in law and the path to adjustment opened through advance parole travel.