By W. John Yahya Vandenberg, Esq.
Hogan & Vandenberg LLC
This is the third of three articles on obtaining U.S. Lawful Permanent Residence (“the greencard”) for persons who entered the United States without inspection, also known as “EWI.” The first article explored Provisional Waivers. The second article explored what “Extreme Hardship” means in relation to the “waiver” in Provisional Waiver. This article is about a third option: seeking Adjustment of Status and using Advance Parole to visit family members in the home country and at the same time to cure entry without inspection. Once the immigrant has entered using Advance Parole, they would be eligible to adjust their status without requiring a waiver.
Curing unlawful entry by entering with Advance Parole is not a new concept or practice. Many lawyers who have dealt with immigrants on Temporary Protected Status (“TPS”) already have experience.
Allow me to introduce, for the purpose of example, Juan and Lisa. Juan is an immigrant from El Salvador. He entered the United States in 1998, walking across the border from Mexico into Texas. He, like many others, was never caught by the Border Patrol. When the United States designated El Salvador for TPS on March 9, 2001, Juan applied for and was granted TPS. He remained in the United States ever since.
Juan met Lisa, a U.S. citizen. They fell in love, and married. They had two children together, ages 3 and 7, both U.S. citizens. Juan wanted to become a U.S. Lawful Permanent Resident through his wife, Lisa.
Historically, their choices were stark. They were:
a) Wait it out, and see if the law changed. This meant some type of amnesty or immigration reform. And it has not happened yet.
b) Lisa could have petitioned for Juan as her spouse, and once approved he would travel to El Salvador, have a visa appointment at the Embassy, and wait 6-9 months for an answer to his unlawful presence waiver application;
c) Lisa could have petitioned for Juan as her spouse, seeking to Adjust his Status in the United States. Adjustment of Status essentially means that a person gets their greencard in the United States, usually after an interview at the local U.S. Citizenship & Immigration Service (“USCIS“) office. However, the law for Adjustment of Status requires that an applicant be “admitted” or “paroled” into the United States. So Juan had a problem: he entered the United States without inspection – walking across the border – so he was never “admitted” or “paroled.”
For Choice “C”, there was an answer, but it had a drawback. Immigration attorneys reasoned that if a person has TPS, then they were considered to be maintaining lawful status. As early as 1991, the then-INS Acting General Counsel Paul W. Virtue, opined that a person with TPS would be eligible for Adjustment of Status, so long as they utilized Advance Parole to leave and re-enter the United States and they were an “Immediate Relative.” Whenever a person applies for Adjustment of Status, they can also apply for an Employment Authorization Document (a work card) and Advance Parole. The Advance Parole allows a person to leave the United States and resume their Adjustment of Status process. Sort of like keeping one’s place in line. So the good news was that Juan would be eligible for Adjustment of Status once Lisa petitioned for him, so long as he left and returned to the United States using his Advance Parole.
But here was the drawback at that time. Once Juan went on his brief, casual, and innocent trip abroad to visit family and returned using Advance Parole, that departure triggered “Unlawful Presence,” since Juan was here more than a year without permission. Unlawful presence is a part of the Immigration Law known as the Immigration and Nationality Act that punishes immigrants who remain in the United States without permission, such as overstaying a visa or entering without permission. If the immigrant is here for more than 6 months but less than a year, and they depart, they are barred from returning for 3 years. If they are here a year or more without permission, and they depart, they are barred from returning for 10 years.
Notice that I said “and they depart.” This is because unlawful presence only hurts the immigrant when and if they “depart.” Until the plane’s landing gear comes up, or the bus tires roll across the borderline, there is no bar to coming back to the USA due to unlawful presence (because the immigrant never left). Apparently, Congress had the misguided notion that if they penalized unlawful presence, immigrants would “self deport” to avoid it. Instead, because of the draconian consequences of departing after unlawful presence, history has shown it forced immigrants to fight like heck to avoid leaving. But that’s a topic for a future article.
Now, in our example, if Juan and Lisa wanted to try to Adjust his status, they were going to trade one problem for another – Juan would fix his unlawful entry using the Advance Parole. But once he departed, he triggered the Unlawful Presence bar. Therefore, he could not get the greencard unless he was able to show that it would cause Lisa “extreme hardship” if he was forced to stay in El Salvador for 10 years, and/or if Lisa was forced to join him in El Salvador. Still, this solution at least allowed Juan and Lisa to remain together while USCIS made a decision on the waiver. Though if the waiver was not granted, it could take years to win an appeal. For an example of one appeal we won involving exactly this situation, the decision is here. We waited almost two years for this decision!
Things were indeed difficult for the Juan’s and Lisa’s who were trying to do everything right.
Then, in April 2012, something wonderful happened. The U.S. Board of Immigration Appeals (the “BIA”) issued a precedential decision, Matter of Arrabally and Yerrabelly. There, the BIA set out, to the contrary of how everyone understood Advance Parole and Unlawful Presence, that leaving the USA on Advance Parole was not really a “departure” for the purposes of the Unlawful Presence bar, and therefore Unlawful Presence was not triggered. This shook the earth, from an immigration law perspective.
So you remember Juan and Lisa’s problem? And how we had to show extreme hardship to Lisa when he triggered the Unlawful Presence bar? Well, in Matter of Arrabally, the BIA said, essentially, that it doesn’t make sense for a brief, casual, and innocent visit using Advance Parole to trigger the Unlawful Presence Bar since the USCIS gave it to the immigrant in the first place, knowing full well that they would like to travel for a legitimate purpose.
Therefore, after April 2012, Juan could re-enter using Advance Parole, which would cure his unlawful entry, and seek to adjust status without a waiver. He would adjust his status just like anyone else who was lawfully admitted. We know this is the case, because in August 2012, the USCIS Administrative Appeals Office (“AAO“) issued a decision based on Matter of Arrabally. In the decision, the AAO considered the case of a man from El Salvador, who had departed the United States using Advance Parole, and when he re-entered tried to Adjust Status. Unfortunately for him, the USCIS District Office didn’t find extreme hardship, so they denied the waiver and denied his Adjustment of Status. He appealed. And then, the AAO granted his Adjustment of Status. They did so because after Arrabally the waiver was no longer necessary. This is supportive of our position that Adjustment of Status using Advance Parole is a proper means of obtaining Lawful Permanent Residence.
What does using Advance Parole and Adjustment of Status mean to immigrants and their families, and why should they consider this process? First, it’s faster than Provisional Waivers, which can still take a year or more. The Provisional Waiver program is a three step process: a) File I-130 Immigrant Petition, b) upon approval, file I-601A Provisional Waiver, c) upon approval, complete consular processing in the immigrant’s home country. That process can take a year or more (though at least the immigrant is in the United States with their family for most of it!). Adjustment of Status/Advance Parole is generally taking about four months.
Second, it’s more likely to be successful. Remember, in order to qualify for the Provisional Waiver, there has to be extreme hardship. In some cases, there just may not be “extreme hardship.” For example, if the immigrant is married to someone from his/her own home country, who speaks the language fluently, is financially independent, has no children or elderly relatives, and has a job that is lucrative in the United States and the foreign country. No extreme hardship, no provisional waiver. Yet for the Adjustment/Advance Parole process, no hardship of any kind is necessary. Once entry is cured, since there is no longer a trigger for Unlawful Presence, the immigrant adjusts their status as any other immigrant who entered lawfully.
Third, it’s less expensive. The I-601A Provisional Waiver form requires payment of a $585 USCIS filing fee. And that’s not counting the attorneys’ fees to prepare a strong argument for granting the waiver. But if we use Advance Parole and seek Adjustment of Status, once the immigrant has been paroled into the United States, their entry is cured. No waiver necessary. And the fee for the Advance Parole is already part of the filing fee for the I-485.
The next question we usually get is what are the guarantees that the immigrant will be admitted back to the USA using the Advance Parole. This has been answered as far back as 1997. There, the INS General Counsel stated that parole is not admission, therefore it doesn’t matter if the person would be subject to a bar of removal, they can still be paroled in. And even if Customs & Border Patrol (“CBP”) made a finding that the Advance Parole is revoked or doesn’t want to parole them in for some reason, Section 16.1 of the CBP Inspector’s Field Manual makes it clear that they must allow them to remain in the United States and allow them to make their case to the Immigration Judge. So, barring a serious criminal record or a previous deportation/removal order, the immigrant should be allowed into the United States on the Advance Parole.
Finally, what happens if it is not successful? At this time, all of our clients in this situation have successfully adjusted status. And we feel that this is consistent both with the purpose of the Advance Parole and the Virtue Legal Opinion above.
However, since March 2013, USCIS has been denying the initial I-485, since at the time of filing the immigrant had not yet been admitted on Advance Parole. However, if a subsequent I-485 is filed afterwards, these have been approved.
Even if the adjustment were not successful, it is unlikely that the immigrant would be put into removal proceedings due to Prosecutorial Discretion. As the Prosecutorial Discretion Memorandum sets out, ICE is seeking to remove criminals, terrorists, and persons who have been ordered removed and either never left or returned illegally. And since removal proceedings are unlikely, the immigrant could still seek a Provisional Waiver. Or, alternatively, wait and see if the law changes.
Of course, we have to emphasize that every person’s case is different. None of our blog articles are legal advice – for legal advice you must consult with us, or an attorney who is experienced and knowledgeable in immigration law. Immigrants who have a previous removal order or have a criminal record would likely not be good candidates for Advance Parole adjustment. In addition, USCIS revises its guidance constantly, and updates its understanding of the laws and regulations; Adjustment of Status using Advance Parole to cure entry may not be accepted in the future. If you are considering adjusting status, please contact our office and set up a consultation so that we can learn more about you and advise you properly. We look forward to speaking with you!
UPDATE, March 5, 2015: USCIS has made it much, much harder to obtain Advance Parole, and this has been the case since approximately August 2014. Persons who have DACA or TPS are still able to obtain it, so long as they can show they have a legitimate humanitarian ground for traveling. And make no mistake — USCIS is requesting documentation to prove it. It has become more rare, however, to obtain advance parole if the applicant does not have DACA or TPS. While we may disagree with USCIS’ reasoning on not granting Advance Parole, it is a factor that must be addressed in considering whether to apply for Adjustment of Status or not.