Advance Parole Does not Trigger Unlawful Presence

Traveling abroad on advance parole but with unlawful presence? The Matter of Arrabally and Yerrabelly, 25 I&N Dec.771 (BIA 2012) as an example of the interplay between travel and status.

In the landmark decision Matter of Arrabally and Yerrabelly, the Board of Immigration Appeals (BIA) found a husband (Arrabally) and wife (Yerrabelly) – both of whom resided in the US for over a year after their respective temporary visas expired – could travel outside the US under a grant of “advance parole” without becoming inadmissible by operation of law. While this decision is several years old, well settled, and often cited by immigration lawyers, a brief synopsis of the underlying facts and rationale behind the decision may benefit as an example of issues arising from travel abroad.

Under the facts, Rao Arrabally and Sarala Yerrabelly entered the US as non-immigrants with temporary visas. The couple remained in the US for some years after their respective visas expired. The husband thereafter obtained an approved employment-based immigrant visa petition and the couple accordingly applied to the United States Citizen and Immigration Services (USCIS) for adjustment of status. However, during the pendency of the adjustment of status application, the couple needed to return to India to attend aging parents.

At issue is a federal statute stating a foreign national is barred from admissibility if he or she departs the US and seeks admission within 10 years of the date of such departure if that person was unlawfully present in the US a year or more prior to departure. Here, Arrabally and Yerrabelly were “unlawfully” present in the US more than one year after their respective temporary visas expired. Of concern was whether USCIS would consider the pending adjustment application abandoned as a result of departing the United States. As a result, Arrabally and Yerrabelly applied for (and were granted) “advance parole” which is a travel dispensation typically sought by foreign nationals already inside the US desiring to leave temporarily but fear exclusion as inadmissible upon return.

Despite the grant of advance parole, upon their return from India, the USCIS denied the couple’s adjustment of status application as ineligible because they departed the US and thereby became inadmissible by strict application of the 10 year bar. The USCIS’ decision to deny the adjustment of status application was later upheld by an immigration judge who further ordered the couple removed from the US as a result.

Fortunately, on appeal, the BIA did not agree with USCIS or the immigration judge.  The BIA rejected the government’s contention that leaving the US under advance parole still effectuates the type of departure that triggers the 10 year bar if unlawfully present for at least a year. In doing so, the BIA reasoned travel under a grant of advance parole is different than a regular departure since the individual is given an assurance he or she will generally be allowed back in the US and permitted to seek the benefit of a previously filed and pending adjustment of status application.

As the Matter of Arrabally and Yerrabelly decision illustrates, foreign travel can give rise to significant and, in some cases, counter intuitive consequences with respect to one’s immigration status in the United States.

Please feel free to contact Sharma Law Offices with questions if you want to travel on advance parole but were unlawfully present in the past or other immigration matters with respect to your particular set of circumstances.