Advance Parole Travel and Considerations - What You Must Know Now

Under U.S. immigration laws, noncitizens who have been living in the U.S. without status for too long and then leave the country, even on a short trip, may be barred from seeking a green card for three or ten years unless they qualify for and are granted a waiver. This is because of the “grounds of inadmissibility”—a list of reasons why someone may be disqualified from certain immigration benefits. One common ground of inadmissibility is unlawful presence, which requires two things: 1) a person having been living in the U.S. for too long without authorization (unlawfully present) and 2) they then depart the U.S.

For the past 14 years, there was an exception for those who left the U.S. on advance parole—they were not considered to be making a “departure” for immigration purposes. The BIA changed this on August 13. Now, leaving the U.S. pursuant to a grant of advance parole is considered a departure for immigration purposes that may lead to the unlawful presence ground of inadmissibility applying in a given case.

NOTE: This decision does not change the requirements to apply for advance parole or adjustment of status but will change the immigration consequences of traveling on advance parole. This may mean that someone may not want to travel on advance parole without talking to a trusted immigration legal representative first, in case it hurts their ability to return to the U.S. and apply for adjustment of status in the future.

Some immigration benefits, like adjustment of status, require an applicant to be “admissible”—meaning they are not disqualified by any of the grounds of inadmissibility, including the unlawful presence ground. 

The rules for determining the amount of time someone has been living in the U.S. without authorization (unlawfully present) are complicated, as some time periods do not count—like time under the age of 18 or while a person has Deferred Action for Childhood Arrivals (DACA). Similarly, up until recently, some departures did not count as departures. If someone had too much unlawful presence and then departed the U.S. with advance parole, they might still avoid this ground of inadmissibility, which applies only by departing the U.S. However, this recent BIA decision eliminates the exception for those who travel with advance parole, so now all travel will lead to this unlawful presence ground of inadmissibility applying if, before leaving, the person had been living in the U.S. for too long without authorization.

Someone who has lived in the U.S. for more than 180 days and up to 364 days and then departs will trigger a 3-year bar (making them ineligible for a benefit requiring admissibility unless 3 years pass or they are granted a waiver). Those who have lived in the U.S. for 365 days or more without authorization and then depart will trigger a 10-year bar (making them ineligible for a benefit requiring admissibility unless 10 years pass or they are granted a waiver).

Note that this is only an issue if a person leaves the U.S. If the person never leaves the U.S. they will not need to worry about this. For example, someone may have been living in the U.S. without authorization for 20 years but as long as they never leave the U.S., the unlawful presence ground of inadmissibility will not apply.

The rules are complex and some time periods do not count. To find out if you would trigger any of these bars by leaving the U.S., with or without advance parole, and how it could impact your future immigration options, consult with an immigration attorney or Department of Justice (DOJ) accredited representative to discuss your specific situation. For help finding one in your area visit ilrc.me/findhelp.

Advance parole is still an option for those who want to temporarily travel outside the U.S. and legally return. But anyone considering traveling on advance parole must be aware that they may now trigger these unlawful presence bars when they leave, and this could negatively affect their ability to apply for lawful permanent resident status in the future and could cause an issue when they return to the U.S. after traveling on advance parole.

Example: Ana was brought to the U.S. as a child. She was undocumented until she got Deferred Action for Childhood Arrivals (DACA) when she was 20 years old. From age 18 to when she was granted DACA at age 20 Ana had no lawful status and accumulated more than one year of unlawful presence. 

Before this decision, if she traveled on advance parole, she would not trigger the unlawful presence ground of inadmissibility because it was not considered a departure. But, if she travels now, she will trigger this ground because she accrued too much time (more than one year) of unlawful presence before departing. Although she may have an important reason to travel abroad, she should consult with a trusted immigration legal representative about how the travel may negatively impact her immigration options and ultimately, she might decide that the travel is not worth it.

If you traveled on advance parole prior to this decision, you should not be affected by this decision—meaning that although you left the U.S. on advance parole it should not be considered a departure triggering the unlawful presence ground of inadmissibility. You should still consult with a qualified legal representative to make sure you meet all other eligibility requirements to adjust status. 

No. This decision does not change the requirements to apply for advance parole. However, if you are considering applying for advance parole, you should first consult with a qualified legal representative to assess your individual risks and how travel on advance parole may impact your future immigration options.

It should not, but it is important that you exercise caution when deciding to travel. Because traveling on advance parole will now trigger inadmissibility grounds for those with too much unlawful presence before they left, it is unclear how border officials will treat those re-entering who have now triggered these inadmissibility grounds. There could also be more developments around traveling not related to advance parole, so we recommend speaking with a qualified legal representative prior to traveling to assess your individualized risk. 

No. But, some people may now need to seek a waiver for unlawful presence after traveling on advance parole in order to be able to adjust, and one of the requirements for the waiver is that the applicant have a U.S. citizen or lawful permanent resident (LPR) spouse or parent, which not everyone will have. If someone travels, triggers the unlawful presence ground of inadmissibility, and does not have a qualifying relative to request a waiver, they will have to wait until the three- or ten-year bar has lapsed before applying to adjust. There are also other requirements for adjustment of status, so it is best to consult with a qualified legal representative to assess your eligibility and options and to get an individualized risk assessment. 

Example: Let’s say that Ana in our example above is married to a U.S. citizen. She has accumulated over one year of unlawful presence so if she travels on advance parole now, upon leaving she will trigger the 10-year bar. If she successfully returns on advance parole, her U.S. citizen husband petitions and she applies for adjustment of status, Ana will need a waiver for the 10-year bar. She qualifies for that waiver because she has a U.S. citizen spouse. 

Example: Let’s now assume that Ana is not married to a U.S. citizen, she is single. Her parents do not have lawful status, and she is being petitioned by her 22-year-old U.S. citizen son. If she travels on advance parole now, Ana will not be able to seek adjustment of status right away. This is because she will need a waiver for the 10-year bar and she cannot seek that waiver if she does not have a qualifying relative—a U.S. citizen or LPR spouse or parent. She will have to wait for the bar to lapse (i.e., 10 years) before she can pursue adjustment of status. 

Example: Now let’s say that Ana has had DACA since she was 17 years old and she has continuously renewed her DACA without any gaps. Since Ana was granted DACA before she turned 18 and has not had any gaps, she has not accumulated any time that would count toward the bars. If she left the U.S. on advance parole now, her departure would not trigger these bars because she would not have any time that counts toward these bars. If petitioned by a U.S. citizen spouse or U.S. citizen adult son or daughter, she would not need a waiver because she has not triggered these bars even if she travels on advance parole now.

NOTE: There is a lot of misinformation circulating on social media about this decision and what it means for the immigrant community. To be clear, this decision does not state that if you travel on advance parole now, you will no longer be eligible for adjustment of status. Some will be affected by this decision and will have to either file a waiver or wait for the bar to lapse. Yet others will not be affected by this decision. It is best to consult with a qualified immigration legal representative to review and assess your unique case.