Advance Parole No Longer Considered a “Departure” For Purposes of the Three and Ten Year Bars

548762_departure_sign.jpgThere are two bars that do not allow a non-citizen to return to the United States for re-admission for three and for ten years under INA §§212(a)(9)(B)(i)(I), (II). A foreign national who remains in the US for more than 180 days without legal immigration status, and then leaves the US, will be barred from returning for three years. The bar becomes ten years if the person remained in the US for a year or more without legal status. The bars are triggered when the person departs from the US.

Until recently, the Department of Homeland Security took the position that when a foreign national reenters the United States pursuant to a grant of advance parole, that person is still subject to the three and ten year bars. It does not seem fair that the DHS could expressly grant advance parole to a person, which is permission to reenter, and then subsequently bar them from reentering.

The Board of Immigration Appeals held recently in Matter of Arrabally 25 I&N Dec. 771 (BIA 2012) that leaving the US with a grant of advance parole does not constitute a “departure” for purposes of the bars to re-admission, and therefore does not trigger those bars. The BIA reasoned that advance parole is a discretionary humanitarian benefit, which is authorized in advance by the Department of Homeland Security which is essentially telling the person that he can leave the United States with assurance that his pending applications for immigration benefits will not be deemed abandoned during his absence and that he will be paroled back into the United States upon return, under prescribed conditions, if he cannot establish that he is inadmissible at that time.