INS Publishes Advance Parole Guidelines
Posted Sep 14, 2001

Readers of the MurthyBulletin will be interested to note that the INS has published national guidelines for processing persons entering the U.S. with an advance parole (AP) document known as Form I-512 "Authorization for Parole of an Alien."
 
The guidelines are specifically aimed at ensuring uniformity with respect to treatment of foreign nationals with pending adjustment of status (Form I-485) applications who wish to depart and reenter the U.S. without abandoning their applications. The INS memorandum is dated December 29, 2000, though it was only recently released to the public, and it provides guidance for INS officers at overseas offices; U.S. Ports of Entry and; for cases involving deferred inspection, at local INS District Offices.

The general rule is that a foreign national in possession of an un-expired, valid Form I-512, or Advance Parole, may be admitted into the U.S. to continue processing the Form I-485. The examining inspector must, however, be satisfied that Form I-485 is either pending with, or has been approved by, the INS. Inspectors are instructed to ask the applicant about the basis of his or her parole to determine if the explanation and basis on which parole was issued is consistent.

Background information

INS considers a pending I-485 to be abandoned when the applicant departs the U.S. unless s/he was granted AP before leaving the U.S. The current method of applying for AP is by filing the Application for Travel Document, Form I-131. It is only upon approval of the I-131 that the traveler receives the AP document, Form I-512. The I-512 states that INS may decide to parole in the person when s/he arrives at the Port of Entry. Note that “parole” is not the same as “admission” and does not guarantee entry. Therefore, under appropriate circumstances, there may be a ground of inadmissibility upon which to deny parole. Although there is discretion under the Immigration and Nationality Act (INA) for the Attorney General to “parole into the United States temporarily under such conditions as he may prescribe on a case-by-case basis for urgent humanitarian reasons,” this provision creates no guarantee that any particular category of people will be granted parole; INS must always make a case by case determination on each request for parole.
 
Period of Parole

Foreign nationals who are granted parole while their adjustment of status application is pending may be granted parole until the final decision is made on their adjustment application. Form I-94 should be endorsed with the parole stamp. If Form I-512 indicates no specific authorization date, the parole should be valid for a maximum period of 1 year from the date parole was granted at the Port of Entry. (Generally, for the I-485-based AP, the person is paroled in "indefinitely.") If the Form I-512 is for a single entry, the officer should collect it and forward it to the office where the advance parole was issued. If the Form I-512 is valid for multiple entries, it should be returned to the applicant, after making a photocopy for forwarding to the issuing office.

Deferred Inspection

Deferred inspection means that the person does not meet the legal requirements for admission, but the INS Inspector has reason to believe that the applicant will be able to correct the problem and provide the necessary information after entering the U.S. Therefore, the applicant is admitted on a provisional basis, with instructions to return to the Port of Entry at a later date. The Applicant must have made good faith efforts to comply with the requirements of advance parole prior to departure.

Circumstances in which deferred inspection is appropriate :

(a) The Officer was satisfied that the applicant left the U.S. with a valid Form I-512 and was unable to return before it expired due to unforeseen, uncontrollable, and compelling circumstances beyond her/his control.

(b) The Officer was satisfied that the applicant applied for advance parole in a timely and proper manner before leaving the U.S. and that departure prior to INS response was due to compelling and uncontrollable circumstances.

Officers can accept an INS receipt or canceled check endorsed by INS or other appropriate evidence, as verification that Form I-131 was properly filed in the above circumstances. Alternatively, the inspector can check the location of the adjustment of status application to confirm if Form I-131 was filed.

(c) The Officer is satisfied that the applicant was notified of the approval of the adjustment of status application prior to the date of departure from the U.S. However, that the applicant had to depart so urgently that he/she was unable to report to the INS office to complete final stages of the adjudication process.

Officers may accept evidence such as a Notice of Action (Form I-797), INS district approval notice or status check in the INS "CLAIMS" database, if available, in order to establish adjustment of status was granted in the above circumstance.

Another common situation, not specifically mentioned in the INS memo but previously authorized in INS instructions, is if the I-485 application is approved after the applicant's departure from the U.S. In that circumstance, it is typical to grant deferred inspection, so that the person can go to the local INS office and obtain the permanent residency stamp in the passport.

Deferred Inspection at Port of Entry

When deferred inspection is deemed appropriate, the applicant should be deferred to the INS office with jurisdiction over her/his current place of residence in the U.S. Deferment will provide the officer with an opportunity to obtain additional information necessary to make an accurate decision on the status of the pending I-485 application. The I-94 card will be endorsed with the parole stamp and with “DE, Deferred Inspection.” The applicant will be paroled for a reasonable period, to allow for paperwork to arrive at the appropriate office and for the applicant to obtain any necessary evidence. The applicant then needs to return to the Port of Entry at a designated time.

Deferred Inspection at INS Office
 
If the local INS office confirms that the I-485 was approved, parole should be terminated and the applicant admitted for permanent residence. If an approved / pending application is not located at the particular INS office conducting deferred inspection, the particular INS District office or Service Center which has the application should be contacted before a final determination is made.

If the inspection is deferred due to a pending I-131 or expired I-512, the immigration office conducting the deferred inspection should review the status of the application and then decide whether to continue or terminate the pending I-485; to request the applicant to re-file or, when appropriate, to place the applicant in removal proceedings.

Overseas Offices

Overseas INS offices should apply the same guidelines as INS offices in the U.S. when considering whether to issue or authorize issuance of a boarding or transportation letter to a person wishing to return to the U.S. to pursue the pending section 245 adjustment. The applicant will be instructed to present the sealed envelope from the overseas INS office to the immigration officer at the U.S. Port of Entry. The envelope contains a memorandum to the inspecting Port of Entry officer. Port of entry officers will continue to recommend fines for carriers when the applicant has an expired I-512 and no boarding or transportation letter.

Circumstances when deferred inspection is NOT appropriate :

(a) Applicant did not file Form I-485 and/or I-131 before departing the U.S.

(b) Form I-512 was expired at the time of departing the U.S.

(c) There was no verifiable evidence to confirm adjustment of status application was approved prior to departure from the U.S.

(d) Applicant is an imposter

(e) Document is fraudulent / altered

(f) Form I-131 and/or Form I-485 application was denied.

INS is taking steps to better inform adjustment of status applicants of the need to file form I-131. The consequences of failing to obtain advance parole can constitute abandonment of the I-485 application under certain circumstances. INS is reformulating the entire process and a taskforce is currently working on how to reduce the backlog and processing times for adjustment of status cases.

As readers of the MurthyBulletin may be aware, on June 1, 1999, INS published an interim rule regarding eligibility of H1 and L1 holders and their dependents to enter on the H or L visa status when traveling after filing the I-485. These foreign nationals do not have to apply for advance parole if they have a pending application for adjustment of status. It is only necessary for the examining inspector at the port of entry to confirm that the H or L holder is maintaining that status by still working for the correct petitioner as shown by the latest H or L approval notice, before allowing the H or L holder to enter the U.S. Therefore, the above issues pertaining to deferred inspection, etc. may not be applicable to a person who, for example, chooses to enter on the H1B or H-4 visa instead of using the AP.