It is not unusual for a person who has an adjustment of status application pending to decide to travel outside of the United States. Sometimes, business requires that the applicant travel to another country. At other times, the applicant may not have gone home for many years and may want to see family and friends. If the applicant leaves the United States while the adjustment of status application is pending, the Immigration and Naturalization Service (INS) will consider that the application has been abandoned unless the applicant obtained permission in advance to re-enter. This permission is called “advanced parole”.
The applicant must obtain advanced parole from the INS. Advanced parole is available for bona fide business or any personal reason. The applicant does not need to show that there is an emergency or extreme need to travel. Advanced Parole simply requires a showing that the travel is for any reason which is not contrary to law or public policy.
Advanced parole is not available for those applicants who are currently in deportation or removal proceedings. In those cases, the adjustment of status application is not decided by the INS. It is decided by the Immigration Judge. The Immigration Judge cannot and will not give advanced permission to re-enter the United States. If the applicant is in removal proceedings and leaves the United States, any application currently before the court will be deemed abandoned and will be denied on that basis.
While advanced parole is a convenience for those who qualify, it is not always a harmless process. There are some dangers inherent to those applicants who get advanced parole. If the applicant was unlawfully in the United States for 180 days or more before filing the adjustment of status application, the applicant will be subject to the three (3) year bar upon returning to the U.S. If the applicant was unlawfully in the United States for 1 year before filing the adjustment of status application, the applicant will be subject to the ten (10) year bar upon his or her return. This means that the applicant will not be allowed to enter the United States for a period of either three or ten years (depending on the length of unlawful presence) if he or she leaves the U.S. before the adjustment of status application is approved. This is true even if the applicant obtained advance parole before leaving the U.S. There is another danger for an applicant who obtains advanced parole.
If the pending application (i.e. the adjustment of status application) is denied, the applicant may be placed in removal proceedings. At that point, the applicant will be considered an arriving alien. As an arriving alien, the applicant is not eligible for voluntary departure, for adjustment of status from the Immigration Judge, for change of status or for most other forms of relief. This situation often arises when an applicant is the child (son or daughter under the age of 21) of an applicant for adjustment of status. As the child of the original applicant, the child is eligible to get a green card at the same as the parent. Once the child reaches the age of 21, he or she “ages out” (i.e. the child is no longer eligible to get a green card at the same time as the parent). At that point, the son or daughter?s application for adjustment of status is denied. Following the denial of the application for adjustment of status, the INS will issue an NTA and place the son or daughter in removal proceedings. If the son or daughter has traveled outside the U.S. on an advanced parole while the application was pending, the NTA will charge the son or daughter as an arriving alien. Simply by having returned to the U.S. through advanced parole, the son or daughter will no longer be eligible for voluntary departure, change of status or most other forms of relief.
While the ability to travel outside the U.S. during the pendency of the adjustment of status application may seem like a convenience, it is not without danger. Someone considering applying for advance parole should consult a knowledgeable immigration law specialist to learn the dangers as well as the benefits of this process
