Travel on Advance Parole After Accruing Periods of Unlawful Presence

Individuals who have filed the application for adjustment of status (I-485) frequently apply for an advance parole (AP) document to facilitate foreign travel. For many of these individuals, travel abroad is complicated and may entail considerable risk. Historically, this was particularly true for individuals who accrued certain periods of unlawful presence. In fact, the longstanding interpretation was that departure from the United States by these individuals triggered a bar to reentry and required denial of the I-485 application, notwithstanding the grant of AP. For additional information on Unlawful Presence and the bars to reentry, see the entry in the MurthyDotCom list of immigration terms.

In Matter of Arrabally and Yerrabelly, however, the Board of Immigration Appeals (BIA) significantly changed this interpretation. In this decision, the BIA held that an individual who leaves the United States temporarily pursuant to a grant of AP will not trigger the bar on reentry to the United States even if s/he was unlawfully present for lengthy periods prior to the departure. This noteworthy decision was thoroughly discussed in our NewsBrief, Travel Abroad and Reentry with Advance Parole Safer (02.Jul.2012). Although this decision is binding on USCIS, as well as the CBP and ICE, given the complexity of the issue, individuals who have accrued unlawful presence and been granted AP should consult with a qualified immigration attorney prior to foreign travel.

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