United States: BIA Ruling Means Travel on Advance Parole Can Trigger Admissibility Bar for Certain Foreign Nationals Who Have Been Unlawfully Present

Thirty year ago, Congress enacted legislation providing that a foreign national who departs the United States after having accrued over 180 days of unlawful presence is ineligible for a visa, readmission, or adjustment of status to permanent residence for a period of three years, if the individual was unlawfully present over 180 days but less than one year, or for a period of ten years, if the individual was unlawfully present for one year or more. A waiver of the bar may be available in certain circumstances.

In general, a foreign national is considered to be accruing unlawful presence, for purposes of the three- and ten-year bars, if they overstay their authorized admission period, or enter the United States unlawfully (without inspection), or are found to have violated status by U.S. Citizenship & Immigration Services (USCIS) or an immigration judge in the course of a benefits application adjudication or removal (deportation) proceeding.

In 2012, the BIA ruled in the case of Matter of Arrabally and Yerrabelly that travel on advance parole would not be considered a departure and therefore would not trigger the unlawful presence bar. Since that time, foreign nationals with periods of unlawful presence have been able to travel internationally using advance paroles without fear of triggering the bars. Today’s BIA decision overrules the 2012 ruling, meaning that individuals who have accrued over 180 days of unlawful presence can no longer travel abroad on advance parole without triggering the bars.

Today’s ruling applies only prospectively. As such, travel on advance parole prior to today will not be considered to have triggered the unlawful presence bars. However, going forward, travel abroad on advance parole will be considered a departure, and will thereby subject the traveler to the unlawful presence bars if the individual accrued over 180 days of unlawful presence prior to their departure.

Today’s BIA decision represents a major change in the government’s interpretation of the impact of advance parole travel on the applicability of the three- and ten-year bars. The ruling will have a serious negative impact on foreign nationals who have accrued over 180 days of unlawful presence and who are eligible for or hold advance paroles or similar documents based on a pending adjustment of status or asylum application, approved DACA, or a grant of Temporary Protected Status (TPS).

Foreign nationals who have accrued over 180 days of unlawful presence in the United States need to be aware that they cannot travel internationally on advance parole without triggering the three- or ten-year bar. Individuals who are unsure of the impact of today’s BIA ruling on their pending immigration case or immigration status should consult with their immigration counsel.

Fragomen is monitoring the implementation of today’s BIA decision and will provide further alerts as warranted.