USCIS and DOS Policies Impacting People with Unlawful Presence and Advance Parole

As explained in the MurthyDotCom InfoArticle, Differences Between: Lawful Status, Period of Authorized Stay, & Unlawful Presence (19.Apr.2022), leaving the U.S. after a prolonged stay beyond the expiration date of one’s I-94 can trigger an automatic three- or ten-year bar. In 2012, the Board of Immigration Appeals decided the Matter of Arrabally and Yerrabelly, 25 I&N Dec 771 (BIA 2012), holding that a foreign national is not subject to the three-year bar if they accrue more than 180 days but less than one year of unlawful presence, and obtain an advance parole (AP) document before departing the United States. Recently, the USCIS extended this holding to also apply to situations where a person accrues one year or more of unlawful presence – and therefore potentially would be subject to the ten-year bar – but obtains an AP document before departing the U.S.

USCIS Extends Holding of Matter of Arrabally and Yerrabelly to Ten-Year Bar

On September 5, 2024, the USCIS website was updated to clarify its policy related to the holding in Matter of Arrabally and Yerrabelly. In this update, the USCIS explains that, while the Board of Immigration Appeals decision was limited to discussing the three-year bar, the reasoning applied equally to the ten-year bar. Therefore, regardless of how many days of unlawful presence a person accrues that individual will not be subject to a three- or ten-year bar if they obtain an AP document before departing the country.

USCIS Interpretation Does Not Apply at Consular Posts

Following this announcement by the USCIS, the American Immigration Lawyers Association (AILA) posed a question to the U.S. Department of State, which has jurisdiction over the U.S. consular posts, about how Arrabally and Yerrabelly may be applied to visa applications. More specifically, the DOS was asked what would happen if a person accrued more than 180 days – or one year or more – of unlawful presence, obtained an AP document, and departed the U.S., but then went to apply for an H1B visa. The DOS representative explained that the Board found a noncitizen who leaves and reenters the U.S. using an AP document technically has not made a “departure” because this travel document is issued to facilitate the continuation of a pending adjustment of status application (form I-485). Based on this reasoning, the DOS representative said the protections against a three- or ten-year bar are not applicable to a foreign national who wishes to obtain a nonimmigrant visa.

Protect Your Adjustment Eligibility by Knowing the Law

The differences in these interpretations underscore a crucial point about unlawful presence: the practical implications are significant for noncitizens navigating the immigration system. The USCIS may give somewhat broader leeway for individuals seeking reentry after accruing unlawful presence with an AP document. At the same time, DOS maintains that it is not enough to have an approved AP document if the person is applying for a visa while outside the U.S. These distinctions influence the strategies that lawyers and noncitizens may adopt when addressing their immigration status. Understanding this complexity will allow noncitizens to make informed decisions about their immigration pathways and to effectively navigate the challenges posed by this complex landscape.

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