In our previous post (here) we have discussed about visas, entry, status and length of stays. In this post, we are going to discuss about advance parole or being able to return to the U.S. even if one has overstayed his or her visa.
What is Advance Parole?
Advance Parole is the re-entry permit that you must apply for if you wish to re-enter the U.S. after foreign travel. For most visa categories, you need advance parole from U.S. Citizenship and Immigration Services (USCIS) to travel internationally if you are an alien who wish to travel abroad but have:
- An application for adjustment of status pending;
- Been admitted as a refugee or have been granted asylum;
- Been granted benefits under the Family Unity Program;
- Been granted Temporary Protected Status; or
- An asylum application pending.
Note that Advance Parole does not guarantee admission into the United States. Aliens who have obtained Advance Parole are still subject to the inspection process at the port of entry, similar to any other U.S. visas.
Benefits of Advance Parole
There are two benefits of advance parole.
- It enables an alien to come back to the U.S. after traveling abroad without the necessity of obtaining a visa to enter the U.S.
- It preserves the adjustment of status application pending with the USCIS.
H-1B and L-1 Visa Holders
If you are on an H-1B or L-1 Visa or their dependents who have filed an adjustment of status, you do not need the Advance Parole Re-entry permit. You may re-enter the U.S. as long as you maintain valid H-1B status before you leave the U.S., you may try to apply for an H-1B visa to re-enter the U.S. after your travels abroad. To safeguard that one can come back to the U.S., it is recommended that he or she applies for Advance Parole and get it before travelling abroad.
It is not enough to have applied for advance parole, one must have received approval before the travel date. If one has not applied to advance parole before departure, the application with USCIS will be deemed abandoned and it will be denied, unless one is on H-1B visa or L-1 visa.
How long does it take to get an Advance Parole?
Advance Parole usually takes up to 90 days to receive and is generally valid for multiple entries into the U.S. for one year from the date of issue. In extremely urgent situations, an emergency advance parole document can be requested in case if one can support the emergency request with appropriate documents.
Persons Not Eligible for Advance Parole:
- In the United States without a valid immigration status;
- An exchange alien subject to the foreign residence requirement;
- In possession of a previously issued re-entry permit or refugee travel document which is still valid, unless it was returned to USCIS or it is demonstrated that it was lost;
- The beneficiary of a private bill; or
- Under removal proceedings.
Overstaying your Visa and Advance Parole
Before 2012 it was considered that if one has an unlawful presence issues or is an overstay, he or she should NOT use advance parole as he or she could be subject to a 3 or 10 year bar if he/she leaves the country. Particularly, Department of Homeland Security’s position was that those who departed the U.S. on an advance parole, after incurring unlawful presence of six months or more, would be subject to either the three or ten year bars, and are thus inadmissible. For this reason, most of people who have approved advance paroles on their hands after being an overstay (marriage to a US citizen, for example) were not able to return to the United States due to either the three or ten year bar.
However, the Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), have changed this interpretation. It was held that cannot become inadmissible based on a trip abroad with advance parole even though he or she accrued unlawful presence before. At the present time, a departure under an approved advance parole is not a “departure” that triggers the three or ten year bars. A travel under a grant of advance parole is considered as different than a regular departure since the individual is given an assurance he or she will generally be allowed back in the U.S. and permitted to seek the benefit of a previously filed and pending adjustment of status application. Thus, the overstays who are eligible to adjust status in the U.S. would now be able to come back on the advance parole without being inadmissible anymore.
Please consult with an immigration attorney. If you would like to get more information about Advance Parole, please feel free to contact us at 206-838-8118.