BIA: Person leaving on “advance parole” not subject to 3 or 10 year unlawful presence bars

Today, guest blogger Toni Maschler, an attorney at Bromberg, Kohler Maya, & Maschler in Washington, DC, joins crImmigration.com to discuss the BIA’s recent decision regarding advance parole.

Matter of Arrabally and Yerrabelly, decided April 17, 2012 by a three-judge panel at the Board of Immigration Appeals (BIA), held that a couple with pending applications for permanent residence did not “depart” the U.S. when they traveled abroad with Advance Parole. Matter of Arrabally, 25 I&N Dec. 771 (BIA 2012) (Wendtland, Greer, and Pauley, Board members, with Pauley dissenting).

Although clearly the couple physically left the U.S., two of the three judges held that their leaving was not a “departure” for purposes of whether they were subject to the unlawful presence bar under INA § 212(a)(9)(B)(i)(II). The couple had entered the U.S. legally, but had overstayed their visa by more than a year.

Normally, an individual who is not in current valid immigration status is banned from “adjustment of status” to permanent residence in the U.S. Furthermore, an individual who has accrued more than 6 months or one year of “unlawful presence” in the U.S. is subject to a three-year or ten-year bar to admission from the time he “departs” the U.S.

However, in this case, after the lapse of the couple’s authorized stay, the husband’s employer filed a labor certification for him. The labor certification was filed prior to the 2001 date needed for “245(i)” grandfathering, and the visa petition was approved. Thus, it was clear that this couple, had they remained continuously in the U.S., would have been permitted to adjust status in the United States as soon as their priority date was reached. Nevertheless, an immigration judge ordered them removed because he found them inadmissible due to having accrued more than one year of “unlawful presence” and applying for permanent residence less than 10 years after leaving the U.S.

The BIA’s decision stated that for purposes of retaining their eligibility for adjustment of status, the couple’s trips outside the U.S. did not constitute “departure.”

One of the judges strongly disagreed and wrote a dissenting opinion. It is not clear whether the case will be appealed to a Circuit Court, which could either affirm or reverse the decision.

The legal community is very excited about this decision, which has awakened hopes that individuals who have traveled abroad with advance parole while in Temporary Protected Status will now be clearly eligible to adjust status based on relative or employer petitions without a waiver, even if they had accrued more than six months or a year of unlawful presence prior to traveling abroad.

This is an issue which has been handled inconsistently in the past. We are cautiously optimistic, while we wait to see how this decision is applied and whether the case may be appealed. Individuals with TPS or pending applications to adjust status who have previously accrued unlawful presence and wish to travel abroad with advanced parole are strongly advised to seek out competent legal advice before leaving the US.

Update: The BIA issued an amended decision on August 16, 2012.