BIA rules that travelling on advance parole does not trigger 3/10 year bar

In a recent published decision, the Board of Immigration Appeals (BIA) ruled that certain people who had been out of status, but have a pending adjustment of status application, can travel outside the US on “advance parole,” and still be able to return to the US without being subject to the 3/10 year bar. However, before you buy your ticket and jump on the plane, you should definitely seek the advice of an attorney, who can evaluate if you are eligible, and if it is truly “safe” for you to leave the US.

By way of background, a law that was enacted in 1996 stated that anyone who had been out of status for more than six months, but less than one year and then “departed” the US, could be banned from returning to the US for at least three years. People who had been out of status for more than one year, and “departed” the US could be banned from returning for 10 years. This is referred to as the “3/10 year bar.”

The Department of Homeland Security (DHS) took the position that the 3/10 year bar could be triggered even if the alien departed pursuant to “advance parole.” (“Advance parole” is permission/authorization from DHS to travel outside the U while a person’s adjustment of status application (Form I-485) is pending. The reason people apply for advance parole is because if they left the US while their adjustment of status application was pending, it could be considered that they had “abandoned” the adjustment of status application. Travelling on advance parole avoids the case being considered abandoned.

Many people in the US were out of status, but were petitioned either by an employer or family member before April 30, 2001, and thus have the benefit of a law called Section 245(i), which allows people to file for adjustment of status even if they were out of status, worked without authorization, etc., provided that they were petitioned before April 30, 2001, and were in the US on December 21, 2000.

When the person’s priority date finally became current on their petition, they file for adjustment of status. Some may want to take a trip back home because of an emergency, or to visit family members, whom they had not seen in many years. Therefore, they went ahead and filed for advance parole, which was granted by DHS. Thinking that it was now “safe” to travel outside the US (since their advance parole was granted), they went home, and came back. However, they were later shocked to find out that their adjustment of status was denied because they had “departed” the US pursuant to advance parole. That’s exactly what happened in this recent BIA decision.

In that case, the alien was petitioned by an employer before April 30, 2001 (and thus had the benefit of Section 245(i)). When his priority date was current, he and his wife filed for adjustment of status, and also applied for, and were granted, advance parole. They then travelled a few times outside the US to their home country.

Ultimately, in 2007, DHS issued a denial notice because the alien had “departed this country (under grants of advanced parole) after having been ‘unlawfully present’ here for one year or more and were seeking admission less than 10 years after having departed.” In other words, the couple’s adjustment of status was denied because they “departed” the US, thereby triggering the 3/10 year bar.

The BIA noted that the term “departure” has a very broad meaning, capable of a wide range of meanings and definitions, and it must be read and interpreted in the context of the particular statute and issue. The BIA ruled that a departure under a grant of advance parole is not the sort of “departure” that should trigger the 3/10 year bar: “Accordingly, we hold that an alien who has left and returned to the United States under a grant of advance parole has not made a ‘departure… from the United States’ within the meaning of Section 212(a)(9)(B)(i)(II) of the Act.”

However, BIA also cautioned that it is still risky to travel abroad, as a departure under advance parole would only avoid triggering the inadmissibility of the 3/10 year bar. If a person has other grounds of inadmissibility (such as a criminal conviction, fraud, or the like), a departure could still have devastating consequences. In addition, there could be risks if a person’s adjustment of status application is denied while they are abroad.

Accordingly, before applying for advance parole, and departing the US, you should definitely seek the advice of an attorney. In addition, if your adjustment was denied because you travelled on advance parole, you may want to have an attorney reopen your case.