Advanced Parole No Longer Triggers 3 and 10 Year Bars

952313_gavel.jpgWhen a foreign national remains in the United States for more than 180 days in unlawful immigration status and then makes a departure from the US, this triggers the 3 year bar preventing a person from being admitted for three years. This becomes a 10 year bar if the unlawful status was for one year. Until recently, this rule also applied to those who leave The US pursuant to form I-512 advance parole.

The law has been that advance parole will subject a foreign national to a 3 or 10 year bar. The USCIS Paul W. Virtue Memorandum of November 26, 1997 and the USCIS Donald Neufeld Memorandum of May 6, 2009 stated that leaving the US with a form I-512 advance parole may trigger the 3 and 10 year bars, and consequently will render a foreign national ineligible to adjust status.

This rule was recently overturned by the Board of immigration appeals (BIA), which held in a recent precedent decision, Matter of Arraballay and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), that leaving the US with advance parole is not considered to be a “departure” under immigration law, and thus does not trigger the 3 and 10 year bars. The Board reasoned that since the 3 and 10 year bars are triggered by a “departure” from the US, and held that since advance parole is not a departure, then advance parole does not trigger the bars.

The Board further held that US Customs and Border Patrol (CBP) does not have authority to deny entry to a foreign national who has a valid advance parole document. The court reasoned that parole is not considered to be admission, so whether the person is inadmissible is irrelevant, and CBP must allow any foreign national to parole into the US if the inspector is satisfied the foreign national is entitled to parole and holding a valid I-512 document.