Advance Parole : I-94 Expiration Generally Not a Problem
Posted Nov 08, 2002

As some MurthyBulletin and MurthyDotCom readers may be aware, there has been a recent change to the Port of Entry procedure with respect to individuals entering on an advance parole while the Application for Adjustment of Status (Form I-485) is pending. Under the old procedure, such individuals were issued I-94 cards upon entry that did not contain expiration dates but rather indicated a stay of "indefinite" duration. Under the new procedure, such individuals will be paroled in for one year. This means that there is a particular date notation on the I-94 card. However, as we explain here, this does not necessarily mean such individuals are disallowed from remaining in the U.S. beyond the one-year expiration date. Rather, as persons with the I-485 pending, they are, generally, legally permitted to remain in the U.S. and await the INS decision on the adjustment of status application.

The advance parole document is issued to an individual who has a pending I-485 upon filing the proper form. This document grants advance permission for one's return to the U.S. so that s/he might continue to pursue the Application for Adjustment of Status to Permanent Resident. We know the change in procedure will cause concern among many individuals who plan to travel during the upcoming holiday season. Fortunately, there is favorable clarification that is in keeping with existing law.

Senior officials at the Immigration Services Division (ISD) at INS headquarters explained in an October 17, 2002 teleconference, that there is no unlawful presence created when the advance parole I-94 expires, provided the I-485 is still pending. That is, the individual is allowed to remain in the U.S. while the I-485 is pending, even if that period extends beyond the I-94 expiration date. Such a person will not be regarded as unlawfully present. Accordingly, there are no penalties or negative consequences for the individual, as long as the I-485 is still pending decision with the INS.

This interpretation is consistent with INS policy over the years. INS laws and regulations have always provided that, when one has filed an I-485, that person is deemed to be in a period of stay authorized by the Attorney General. The person is in legal status while the I-485 adjustment application is pending.

Of course, once the I-485 is approved, the individual will become a U.S. Permanent Resident or "green card holder." If the I-485 is denied, the I-94 expiration date may then take on some relevance, although this point is not entirely clear. The ISD stated that the Inspections Division of INS handling issues relevant to Ports of Entry would issue further clarification on the purpose as well as the implications of these changes.