One
of the more obscure provisions announced as part of the President’s immigration
initiatives was to “provide consistency regarding advance parole”. Few people seem to know why this issue was
included.
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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