May 22, 2012
One of the greatest hardships that an individual residing unlawfully in the United States encounters is the inability to visit family and friends in their native country, often for a very long period of time and not even for emergency situations. The helpless feeling of being “stuck” in the United States can some times result in an individual giving up on the pursuit of the American Dream, simply so they can see an elderly ailing parent or attend a special event, such as a wedding or graduation of a child. Thankfully, the Board of Immigration Appeals (BIA) recently issued a court decision that now allows certain individuals to travel in and out of the United States while their adjustment of status application is pending.
The problem posed by traveling before obtaining the green card is the risk of triggering a 3 or 10-year bar of inadmissibility. When an individual has been residing unlawfully in the US for more than 6 months, a departure from the US triggers a 3-year ban on obtaining any type of visa. The ban is 10 years when an individual has been residing in the US unlawfully for more than 1 year and then departs the US. These are known as the unlawful presence bars.
Much confusion arises, however, as to whether the unlawful presence bars apply when an individual travels in and out of the US on an advance parole travel document. Generally, any individual who has submitted an adjustment of status application may apply for and be granted an advance parole document in order to travel in and out of the US. Historically, however, the Department of Homeland Security (DHS) has indicated that the unlawful presence bar continues to be triggered even if the DHS has issued an advance parole document allowing the person to travel in and out of the US. Accordingly, individuals find temporary happiness in being able to travel, but then realize afterwards that the travel now prevents them from obtaining their green cards for many, many years.
On April 17, 2012, the BIA ruled in the Matter of Arrabally that the DHS interpretation of the unlawful presence bar in relation to traveling on advance parole is incorrect. 25 I&N Dec. 771 (BIA 2012). The court decision now clarifies that an individual with a pending adjustment of status application may obtain an advance parole document that allows them to travel without triggering the unlawful presence bar.
The case involves a family who had submitted their adjustment of status applications, but then had to wait several years before the adjustment applications could be finalized due to the retrogression of their priority date. The family obtained advance parole documents in order to visit their elderly parents in India, which they did on several occasions while waiting for their green card applications to be finalized. Unfortunately, when the time arrived for the DHS to finalize their adjustment applications, only then did they realize that their travels under the DHS authorized advance paroles would lead to the denial of their green card applications.
Recognizing the injustice of the situation, the BIA reversed the denial of their applications and ruled that the unlawful presence bars are not triggered when an individual travels on advance parole that is issued based on a pending adjustment of status application. Accordingly, individuals with a pending adjustment of status application may now obtain an advance parole document in order to travel while they await the decision on their adjustment application.
The BIA ruling is a classic example of how the immigration laws are constantly evolving and changing, and why it is therefore vital that individuals seek legal counsel from attorneys who specialize in immigration. Since so many adjustment applications take years to finalize due to the retrogression of a priority date or other reasons, the ability to obtain an advance parole document to travel, without the risk of jeopardizing the green card application, is a vital benefit that is thankfully now possible.