Clarifying the effects of Advance Parole is only very small issue when compared to the other actions proposed by the President, but for those few effected by this issue, it can mean the difference between becoming a Permanent Resident now or having to first return to their home country for up to ten years.
To understand this initiative, the concepts of Advance Parole and “Unlawful Presence” must first be explained.
In 1996, Congress passed a law intended to punish those who entered the United States without being inspected by immigration or (in most but not all cases) those who overstayed their permission to be in the United States.
In the most simple terms, if a person is Unlawfully Present for over 180 days but less than one year, and then departs the United States, that person is inadmissible to the United States for three years. If a person is Unlawfully Present for one year or more and then departs the United States, he will be inadmissible for 10 years. Although it may be possible to obtain a waiver of this inadmissibility, the waiver is not easily granted, nor is it even available to everyone.
Unlawful Presence has its own unique definition and is not the same as being out-of-status. I will not cover here the legal details for determining Unlawful Presence, but to understand this administrative initiative, it is important to know that people who accrue over 180 days of Unlawful Presence, and then depart the U.S., may be barred from returning or obtaining Permanent Residence for three years. Similarly, those with one year or more of Unlawful Presence may face a penalty of ten years.
Advance Parole is a document requested from USCIS before a person leaves the United States giving permission to return from a trip abroad. Many different groups are eligible to request Advance Parole, including those registered for Temporary Protected Status, Deferred Action, and those with Permanent Residence or Asylum applications pending with USCIS.
Since 1996, if a person with over 180 days of Unlawful Presence left the United States, even if the trip was authorized by USCIS through the issuance of an Advance Parole, the mere act of departing the U.S. would generate a 3- or 10-year Unlawful Presence bar. Although USCIS included cautions on the Advance Parole document warning warned of possible penalties for leaving the United States, many people did not fully understand the consequences, left the United States, then were later barred from obtaining Permanent Residence – all after departing the United States with permission of the U.S. government.
That problem has existed for more than 15 years, but recently there was a glimmer of relief.
In 2012, the Board of Immigration Appeals redefined the word “departure” in a case called Matter of Arrabally and Yerrabelly. In essence, the Board ruled that if a person obtained Advance Parole based on a pending application for Permanent Residence, then left the United States, that person has NOT “departed” the U.S. within the meaning and intent of the Unlawful Presence statute. Consequently, now if a person with over 180 days of Unlawful Presence leaves the U.S. with Advance Parole, they have not “departed” the U.S. and will not create a 3- or 10-year bar Permanent Residence.
Many thought the Arrabally was the last word on this issue, believing that departures with Advance Parole no longer can trigger an Unlawful Presence bar. So why do we need a special Administrative Initiative? Simply because Arrabally did not say what most believed it to say.
Arrabally was a decision specifically based on an Advance Parole issued to a person with a pending Adjustment Application. The case did not address departures on Advance Paroles issued for any other reasons. In the two years since Arrabally, USCIS has given mixed signals whether Unlawful Presence bars can be created when departing the U.S. using Advance Paroles granted for reasons other a pending Adjustment Application. Most local USCIS offices take the position that an Unlawful Presence bar will not be triggered by trips with any Advance Parole. However, some USCIS field offices are unsure and are still refusing to decide these cases until they receive further guidance from Washington.
Hence, the reason for this special immigration initiative. The President has directed the Department of Homeland Security to issue legal guidance to the field advising that no Unlawful Presence bar will be produced by departing the U.S. on any Advance Parole.
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