Advance Parole Does Not Trigger Unlawful Presence
In 2012 a case known as Matter of Arrabally,, the Board of Immigration Appeals ruled that travel with advance parole is not a “departure” and, therefore, does not trigger the 3/10 year unlawful presence bars.
In GeneralSince 2012, people who were legally admitted into the United States, married a U.S. citizen, applied for permanent residence, including a request for Advance Parole, can travel with the Advance Parole document and will be admitted back into the United States. Such travel would not be considered departure and thus would not trigger the 3/10 unlawful presence bar. As a result, the person's status would be the same as before he left.
Matter of ArraballyIn the Matter of Arrabally a married couple from India filed an application for Adjustment of Status as well as Advance Parole. While their application was pending, the couple, using their Advance Parole document, decided to travel to India to visit their elderly parents. Upon their return, the couple was allowed to renter the United States. However, the adjustment of status applications of Arrabally and Yerrabelly were denied on the basis that they were inadmissible for 10 years, and were subsequently placed in removal proceedings.
The Board of Immigration Appeals held that travel on advance parole was not a "departure"within the meaning of the statute and hence did not trigger the ground of inadmissibility that bars admission after the accrual of unlawful presence .
In short, any individual who physically leaves the United States pursuant to a grant of advance parole, that individual shall not have made a "departure " within the meaning of section 212(a)(9)(B)(i) of the INA, i.e, such individual will not trigger the 3- and 10-year bars of inadmissibility.