|
Our office has learned that U.S. Citizenship and Immigration Services ("USCIS") has finally issued long-awaited guidance that could enable people in Temporary Protected Status ("TPS") or Deferred Action for Childhood Arrivals ("DACA") to apply for a green card after returning to the U.S. on an advance parole.
The issue relates to people in TPS or DACA who have been unlawfully present in the U.S. and then depart the country. Those unlawfully present in the U.S. for more than 180 days trigger a 3 year bar to "admissibility" (and thus a bar to getting a green card) upon departure from the U.S. Those with at least 1 year of unlawful presence trigger a 10 year bar upon departure.
Previously, USCIS was struggling with the question of whether a departure on an advance parole document triggered the 3 or 10 year bar to admissibility. In Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), the Board of Immigration Appeals ruled that travel on an advance parole
pursuant to a pending adjustment of status application is not a "departure" under the INA and therefore does not trigger the 3 and 10 year bars.
USCIS Headquarters has now issued guidance to all USCIS Field Offices around the country instructing its officers that Matter of Arrabally and Yerrabelly extends to TPS and DACA recipients. Therefore, even if a TPS or DACA recipient has more than 180 days of unlawful presence, they will not trigger the bars if they travel abroad and return on an advance parole.
Moreover, upon return from travel abroad, the Advance Parole grants the status of "parolee," which renders many individuals eligible to apply for a green card under section 245(a) of the Immigration and Nationality Act (INA). This can be extremely helpful to TPS and DACA recipients who are not currently eligible for a green card because they entered the country without inspection before receiving TPS or DACA. Now, if a TPS or DACA recipient departs and returns on an advance parole, he or she may be eligible for a green card without having triggered the 3 or 10 year bars.
Advance parole documents are granted to TPS and DACA recipients under specific circumstances. If you currently hold TPS or DACA and need to travel outside of the United States, please contact our office to help evaluate whether you are eligible for advance parole, and whether you may ultimately be eligible for a green card.
Feel free to contact our office at 786-406-1744 or info@ratzanlaw.com if you have any questions about immigration laws.
| 
