Alert: BIA Rules Advance Parole Travel Can Trigger 3- and 10-Year Unlawful Presence Bars
Summary
The Board of Immigration Appeals (BIA) has issued a critical precedential decision, ruling that a departure from the U.S. under advance parole constitutes a “departure” for purposes of triggering the three- and ten-year unlawful presence bars. This significantly alters the long-held understanding that advance parole protected individuals with prior unlawful presence from such penalties upon re-entry. The decision directly impacts individuals seeking adjustment of status (Green Card) who have accrued unlawful presence and used advance parole for international travel.
The Board of Immigration Appeals (BIA), in *Matter of Delcarmen-Lara*, has made a groundbreaking precedential ruling that traveling outside the United States with advance parole is considered a “departure” for the purposes of the three- and ten-year unlawful presence bars under INA 212(a)(9)(B)(i). This means that if an individual has accumulated more than 180 days of unlawful presence in the U.S. and then departs, even with a valid advance parole document, they will trigger the three-year bar to re-entry; if they have accrued one year or more of unlawful presence, a departure triggers the ten-year bar. This decision mandates a strict interpretation of the statute, aligning the definition of "departure" to include advance parole exits.
This ruling carries significant practical implications, particularly for individuals who are in the process of adjusting their status to lawful permanent resident (Green Card) and who previously accrued unlawful presence. Many immigrants and practitioners had operated under the assumption that advance parole allowed for travel without triggering these bars, offering a critical safety net. Now, such travel can render these applicants inadmissible, potentially jeopardizing their Green Card applications and requiring complex waivers or consular processing, which are often more difficult to obtain and can lead to prolonged separation from family.
Background
Prior to this BIA decision, many individuals and immigration practitioners generally believed that travel with a valid advance parole document did not constitute a “departure” for the purposes of triggering the three- and ten-year unlawful presence bars, especially for those with pending adjustment of status applications. This understanding often allowed individuals with prior unlawful presence to travel internationally without severe immigration consequences upon their return.
Who This Affects
- Individuals who have accrued more than 180 days of unlawful presence in the U.S. and have traveled or plan to travel using advance parole are significantly impacted.
- Applicants for adjustment of status (Green Card) who previously used advance parole after accruing unlawful presence may now face inadmissibility issues upon their return or at their Green Card interview.
- Those considering overseas travel with advance parole should reassess their situation if they have any history of unlawful presence, as this decision fundamentally changes their eligibility and risk profile.
What You Should Do Now
- Consult immediately with an experienced immigration attorney to understand how this ruling applies to your specific immigration history and any planned or past advance parole travel.
- If you have accrued unlawful presence, strictly avoid all international travel, even with advance parole, until you have fully assessed the risks and implications with legal counsel.
- Review all past travel history and periods of stay in the U.S. to accurately determine if you have accrued any unlawful presence before making any decisions about your immigration application or future travel.
Key Takeaway
Advance parole no longer shields individuals with unlawful presence from triggering the 3- or 10-year bars upon departure from the U.S., a critical change for Green Card applicants.
Source: Read official article on Murthy Law Firm
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