If an EWI (entry without inspection) who received deferred action and advance parole under DACA (Deferred Action for Childhood Arrivals) were to leave US on the advance parole and return would they be considered to been paroled into US and be allowed to adjust via marriage to a citizen spouse without the need to go through an I-601 hardship waiver? Alternatively, seeing how leaving on advance parole does not trigger 3/10 year bans would consular processing be an option?
I think that question is still open. Certainly, to be safe, I would recommend against travel. But there was a recent case from the Board of Immigration Appeals that is cause for some hope, Matter of Arrabally and Yerrabelly. In that case, the BIA held that "An alien who leaves the United States temporarily pursuant to a grant of advance parole does not thereby make a “departure . . . from the United States” within the meaning of section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act."
Now, this case also dealt with individuals who had pending adjustment applications, and traveled back to India on advance parole after having already accumulated more than a year of unlawful presence. It remains to be seen if the legal reasoning will be extended to people granted DACA benefits, inlcuding advance parole, who have already accumulated enough unlawful presence prior to the grant of DACA to potentially trigger the unlawful presence bar.
Now, that being said, DACA advance parole should help those individuals who:
(1) entered the country without inspection, and are therefore currently ineligible for adjustment in the U.S., and
(2) have not yet accumulated enough unlawful presence to to trigger the 3/10 year bars to returning.
If a person in that scenario traveled on advance parole, his or her reeentry on parole should then qualify as an "inspection and admission or parole" allowing him or her to meet the prerequisite for adjustment of status.
This will primarily apply to individuals who have a single EWI entry from their past, and who receive DACA benefits prior to 180 days after their 18th birthday (since the granting of DACA will toll the accumulation of unlawful presence).
3 found this helpful
9 lawyers agree
The answer to your first question is NO.
Behar Intl. Counsel 619.234.5962 Kindly be advised that the answer above is only general in nature cannot be construed as legal advice, given that not enough facts are known. It is your responsibility to retain a lawyer to analyze the facts specific to your particular situation in order to give you specific advice. Specific answers will require cognizance of all pertinent facts about your case. Any answers offered on Avvo are of a general nature only, and are not meant to create an attorney-client relationship.
I agree with my colleague. No. And if you are granted DACA but are an EWI, I do not recommend travelling outside the US.
Contact immigration attorney Gintare Grigaite, Esq. at 646-407-2331, located in New York and New Jersey. Answers on AVVO do not constitute legal advice and do not form attorney-client relationship. Always consult an attorney for a legal advice.
I agree with my colleagues. However, a recent case states travel on advance parole does not trigger 3/10 year. This decision is very fact specific and I expect that the decision is not applicable to most of the deferred action applicants. You should consult an attorney.
This answer is of a general nature and should not be relied upon as final, nor is it intended as legal advice. Consult with a qualified attorney before making any legal decisions. Gen Kimura, (832) 247-6932.
I agree with my colleagues.
You should retain an experienced immigration lawyer, whether myself or one of my colleagues, to review all the facts, advise you, and handle the case.
J Charles Ferrari Eng & Nishimura 213.622.2255 The statement above is general in nature and does not constitute legal advice, as not all the facts are known. You should retain an attorney to review all the facts specific to your case in order to receive advise specific to your case. The statement above does not create an attorney/client relationship. Answers on Avvo can only be general ones, as specific answers would require knowledge of all the facts. As such, they may or may not apply to the question.
4 lawyers agree