LEGAL GUIDE
Written by attorney Uzoamaka Angela Akpele | Jun 5, 2010

Advance Parole and Adjustment Applications

Travelling out of the United States while one's adjustment application is pending can sometimes be a tricky matter. The default position is that travelling while one's I-485 adjustment application is pending is deemed an abandonment of one's application, leading the CIS to deny the application on that ground.

Obtaining advance parole allows one to travel without abandoning your adjustment application. In certain cases, it may be advisable not to travel while an adjustment application is pending. Two such instances are (1) when one has accrued considerable periods of unlawful presence; (2) when one has derivative beneficiaries riding on his application to adjust status.

Advance parole does not protect one from being turned back on one's return to the US, if one has had long periods of unauthorized stay. Departure from the Us following long periods of unauthorized stay will trigger the 3/10 year bar and possession of advance parole document will not cure it.

Example: A came to the United States as a tourist in 1990 and was allowed a stay of 6 months. A did not leave but remained in the United States. In December 2009, A marries B a US citizen and they have both filed the application package. A has applied for and obtained advance parole, with the intention of travelling to Canada for a week's vacation with his wife while their applications are pending. As A has accrued unlawful presence of over one year, he will trigger the 3/10 year bar once he departs the US. He stands the risk of being refused entry into the country upon his return.

Example: C on the other hand came into the US in October 2009. This is his very first visit to the US. He was allowed in for 6 months. In February 2010 he marries D a US citizen and they immediately send out their application package which includes an application for advance parole as C and D want to travel to Canada for a week in March 2010. C may safely travel to Canada and return. Since in March he would still be in his period of authorized stay, he will be allowed back into the US. He will be able to continue to process his adjustment application.

Persons who leave the US on advance parole and are allowed back in based on the parole no longer have their former status, but become parolees. C in the above example when let back into the US will no longer have his tourist status, but will be a parolee. This change in status has an effect on certain persons who have pending adjustment applications. Those adjusting from the employment side could find that their spouses or children who are derivative beneficiaries on their adjustment applications will lose status, putting them at a disadvantage.

Example: E hold L1 status and his wife holds L2 status. E's employer has filed petition for E, to sponsor him for a green card. E has also applied to adjust status. He is about to travel out to the UK on business for his employer and has applied for advance parole. E could travel and return and continue processing his adjustment application, but upon his return he would be allowed into the US, not as an L visa holder, but as a parolee. E's wife would be affected as her status as an L2 visa-holder is based on her husband's status. If his status as L changes, so does hers. If he becomes a parolee, she loses L2 status and may not necessarily become a parolee as well.

This situation calls for the advice of an immigration lawyer so that a strategy can be worked out to protect E's wife. (It is possible to work something out).

Whether adjusting from the family or employment side, one must obtain advance parole before leaving the United States. If one fails to do so, one could still return and continue processing and eventually might even be granted permanent residence without the CIS noticing the departure. One would however have a serious problem when the time to naturalize comes around. Since that is a time when one's immigration file is reviewed, the CIS will probably notice the departure without advance parole. It would make a finding of improperly-granted permanent residence and one would be put in removal proceedings.

Obtaining advance parole while an adjustment application is pending is not a difficult process and there is no filing fee for that application at this time.

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