On April 17, 2012, the Board of Immigration Appeals ruled in a precedent decision that adjustment applicants who have accrued more than 180 days of unlawful presence and have a pending adjustment of status application and who leave the United States under advance parole will not be barred from returning to the U.S. because of such unlawful presence.
The decision has special significance for applicants who apply for adjustment of status under Section 245(i) or who are adjusting on the basis of marriage to a U.S. citizen.
The case was about a husband and wife who entered the U.S. temporarily but overstayed their visas by several years. The husband became the beneficiary of an approved employment-based immigrant petition filed before April 30, 2001, making him and his wife eligible for adjustment of status under Section 245(i).
In 2004, they filed their I-485 applications which remained pending for several years because of visa unavailability. They needed to go back to their home country to visit their aging parents but, since they did not want their adjustment applications to be deemed abandoned, they sought an advance parole from the USCIS. Their application for advance parole was granted and they were able to visit their parents several times.
They were of course shocked to find out that the USCIS denied their adjustment applications because of their trips to their home country, even though they had an advance parole. The reasoning of the USCIS was apparently that, since they had both been unlawfully present in the U.S. for one year or more, and they departed the United States within the last ten years, they were inadmissible because of the 10-year bar.
Removal proceedings were eventually brought against the spouses. They sought relief from the judge in the form of adjustment of status, but to no avail. The spouses were issued a deportation order.
On appeal, the BIA agreed with the spouses and said that a departure under a grant of advance parole was not the sort of departure that renders aliens inadmissible for prior unlawful presence of one year or more.
Generally, a valid visa is necessary before an alien may enter a U.S. port of entry. However, for humanitarian reasons or significant public benefit the immigration authorities may “parole” into the U.S. an alien without a valid visa.
In the case of advance parole, the parole is requested beforehand by the adjustment applicant, with the alien establishing his eligibility and worthiness for the benefit. It is then granted by the USCIS in advance, precisely with the expectation that the alien will be entering the U.S. for inspection without a valid visa in the future.
The advance parole is a discretionary humanitarian measure which tells the alien hat he can leave the United States without fear that his adjustment application will be deemed abandoned and that he will be paroled back into the United States.
This ruling may have far-reaching effects, particularly for those who were denied adjustment because a trip abroad under an advance parole triggered the unlawful presence bar. If they are still in the United States, it might be possible to have their applications reopened.
The BIA ruling, however, is limited only to the inadmissibility ground of unlawful presence, and only in cases where the adjustment applicant obtained advance parole. It is important to consult with an experienced immigration attorney before leaving the United States.