For undocumented individuals, becoming a permanent resident is extremely challenging. Even those who have family members that could otherwise petition for them experience great difficulty obtaining lawful status because they entered “without inspection,” or unlawfully. The unlawful entry renders them “inadmissible,” thereby preventing them from meeting important criteria for Adjustment of Status.
To adjust status to permanent residence, an individual must 1) have been admitted or paroled into the United States; 2) apply for adjustment of status; 3) be eligible for an immigrant visa and be admissible to the United States for permanent residence; and 4) an immigrant visa must be available to them at the time of their application. See INA § 245(a).
Certain individuals, such as those with Temporary Protected Status (“TPS”) and recipients of Deferred Action for Childhood Arrivals (“DACA”) whose deferred action is current, may be allowed to travel abroad with “advance parole,” which is essentially advance permission by the government to re-enter the United States (be “paroled” back into the country.) There are very specific guidelines regarding eligibility for advance parole, and travel abroad for vacation purposes does not qualify. If a DACA recipient or TPS holder travels on advance parole and is allowed to re-enter the United States, he or she will be paroled into the country and will subsequently meet the first criterion for Adjustment of Status.
Anyone who travels on advance parole should be advised that the mere grant of advance parole is not a guarantee that re-entry will be permitted. Immigration officials who inspect those seeking to re-enter will perform a screening and may determine that an individual is not admissible.
One of the major risks to leaving the U.S. for travel abroad is triggering a ground for inadmissibility referred to as “unlawful presence.” INA § 212(a)(9)(B)(i)(I) and (II) prohibit non-citizens (other than permanent residents) who depart the United States, after having accrued prescribed periods of unlawful presence, from re-entering the United States for three (3) or ten (10) years, respectively.
However, in Matter of Arrabally and Yerrabelly, the BIA held that leaving the country under advance parole does not constitute a “departure” for the purposes of triggering inadmissibility for unlawful presence. 25 I&N Dec. 771 (BIA 2012). In reaching this decision, the BIA looked to Congress' intent in enacting 212(a)(9)(B)(i)(II), concluding that it would be contradictory to warn those who are returning to the country after receiving permission to do so that they are “unwelcome to return.” In sum, the BIA held that an individual cannot become inadmissible under 212(a)(9)(B)(i)(II) based on a trip abroad with advance parole.
This decision created a loophole whereby individuals who travel on advance parole may not be affected by the unlawful presence bars Thus, an individual who has successfully returned on advance parole, is not inadmissible for any other reason, and meets all other criteria, may be able to apply for Adjustment of Status.
Individuals interested in learning whether they are eligible for advance parole and Adjustment of Status should speak with a qualified immigration attorney for a full evaluation. Contact the Law Offices of Manuela Morais to schedule a consultation with an expert.