INS on Advance Parole
Subject: Advance Parole for Alien Unlawfully Present in the United States for More than 180 days
Date: November 26, 1997
To: All Regional Directors
All District Directors (including Foreign)
All Officers in Charge (Including Foreign)
All Port Directors
All Service Center Directors
All Training Academies (Glynco and Artesia)
All Regional Counsels
All District Counsels
All Asylum Directors
From: Office of Programs
Generally, any alien who departs the United States after accruing certain periods of unlawful presence and who subsequently applies for a visa, adjustment of status, or admission is subject to the new 3-year bar under section 212(a)(9)(B)(i)(l) of the Act, if unlawfully present for more than 180 days but less than 1 year, or subject to the new 10-year bar under section 212(a)(9)(B)(i)(ll) of the Act, if unlawfully present for 1 year or more. This includes applicants for adjustment of status whose departure is pursuant to advance parole. This memorandum seeks to answer the following questions with respect to requests for advance parole by aliens who accrued more than 180 days of unlawful presence before applying for adjustment of status under section 245(a) or 245(i) of the Immigration and Nationality Act (Act).
Question #1: Can an alien who accrued more than 180 days of Unlawful Presence before filing an adjustment of status application under section 245(a) or 245(i) of the Act be granted advance parole to depart the United States and return to resume processing of the application?
The answer to this question is yes; however, because a departure triggers the 3-year or 10-year bar under section 212(a)(9)(B)(i) of the Act, the alien’s departure from, and subsequent return to, the United States, will pose serious adverse consequences under section 212(a)(9)(B)(i) of the Act. As explained in the answer to question #4, advance parole generally should not be granted, unless it appears that the alien would, in the exercise of discretion, be likely to receive a waiver of inadmissibility. [1]
Section 212(a)(9)(B)(i) of the Act renders inadmissible those aliens who have been unlawfully present in the United States for certain periods of time. Section 212(a)(9)(B)(i) of the Act generally subjects aliens to either a 3-year or 10-year bar to admission, depending on the period of unlawful presence in the United States, and other factors.
According to the plain language of the statute, three specific elements must be present for the alien to be found inadmissible under section 212(a)(9)(B)(i)(l) and (ll) of the Act. First, the alien must have been unlawfully present in the United States for the specified period of time. Second, with respect to inadmissibility under section 212(a)(9)(B)(i)(l) of the Act, the alien must have departed voluntarily before proceedings are initiated under section 235(b)(1) of the Act (expedited removal of aliens at the Port-of-Entry who are in possession of false documents or who are not in possession of any documents), or section 240 of the Act (removal proceedings initiated either upon the alien’s arrival in the United States or following the alien’s admission to the United States.)
With respect to inadmissibility under section 212(a)(9)(B)(i)(ll) of the Act, the alien must have been removed, or have departed voluntarily. In either case, it is not necessary for the alien to have departed under a formal order of voluntary departure.
Third, the alien must be seeking admission into the United States within 3 years of the date of departure or removal to be inadmissible under section 212(a)(9)(B)(i)(l) of the Act, or within 10 years of the date of departure or removal to be inadmissible under section 212(a)(9)(B)(i)(ll) of the Act.
Because a departure triggers the 3- or 10-year bar under section 212(a)(9)(B)(i) of the Act, an alien who accrues more than 180 days of unlawful presence prior to filing an adjustment of status application under section 245(a) or section 245(i) of the Act, who departs while that application is pending, and who returns to the United States with advance parole to resume processing of the adjustment application, will be inadmissible under section 212(a)(9)(B)(i) of the Act.
Question #2: Can an alien who accrued more than 180 days of unlawful presence before filing the adjustment of status application be allowed to return to the United States on an unexpired advance parole authorization?
The answer to this question is yes. Service officers may permit such an alien to return to the United States to resume processing of the adjustment of status application. When seeking to be paroled at the Port- of-Entry, the alien is not required to establish admissibility under section 212 of the Act. Moreover, the fact that the alien was permitted to return to the United States on advance parole does not in any way confer any waiver of inadmissibility. When the adjustment of status application is adjudicated, however, the alien must establish admissibility and eligibility for an immigrant visa, pursuant to section 245(a)(2) of the Act.
Parole allows an otherwise inadmissible alien to physically proceed into the United States under certain safeguards and controls. An alien who accrued more than 180 days of unlawful presence prior to filing an adjustment of status application under section 245(a) or 245(i) of the Act who left the United States on a grant of advance parole may therefore be permitted to reenter the United States to resume the processing of the adjustment of status application. However, because a departure triggers the 3- or 10-year bar, such an alien will be found inadmissible under section 212(a)(9)(B)(i)(l) or (II) or the Act, as applicable, when the adjustment of status application is adjudicated.
Question: #3: Can the alien be granted a waiver of inadmissibility?
The answer is yes. Aliens who are found inadmissible by the Service, if applying for adjustment of status, or by the consular officer if applying for a visa, may seek a waiver under section 212(a)(9)(B)(v) of the Act. To be eligible for the waiver, the alien must establish, to the satisfaction of the Attorney General, that refusal of the application for a visa, admission, or adjustment of status would result in extreme hardship to his or her U.S. citizen or lawful permanent resident spouse or parent. Extreme hardship must be established in accordance with the standards in applicable case law. To apply for a waiver of inadmissibility under section 212(a)(9)(B)(v) of the Act, the alien must file Form I-601, Application for Waiver of Grounds of Excludability.
Service officers should also note that an alien who remained in the United States beyond the period of authorized stay, but who never departed the United States, is not inadmissible under section 212(a)(9)(B)(i)(I) or (II) of the Act, because the statutory bar to admission commences from the date of departure or removal. With this in mind, Service officers should first look at whether the alien departed the United States after accruing more than 180 days of unlawful presence. (Because the effective date of section 212(a)(9)(B)(i)(I) of (II) was April 1, 1997, no one will have accrued 180 days of unlawful presence before September 27, 1997, and no one will accrue 1 year of unlawful presence until April 1, 1998). Once the alien departs or has been removed and seeks readmission, the grounds of inadmissibility under sections 212(a)(9)(B)(i)(I) or (II) will apply.
Service officers should not consider any waiver application under section 212(a)(9)(B)(v) of the Act filed by any alien who has accrued more than 180 days of unlawful presence but who has not yet triggered the 3- or 10-year bar by departing the United States. If the alien has not made a departure, the waiver application should be rejected as improperly filed. Once such an alien departs the United States and applies for a visa at a U.S. consular post abroad, the alien may file a waiver application, if eligible, after the consular officer has determined the applicable ground(s) or inadmissibility.
In addition to waivers under section 212(a)(9)(B)(v) of the Act, certain aliens may be eligible for a broader exercise of discretion. For example, sections 209(c) and 245A(d)(2)(B)(i) of the Act relating to asylee adjustments and second-stage legalization adjustments, authorize the Attorney General to waive most grounds of inadmissibility "for humanitarian reasons, to assure family unity, or when it is otherwise in the public interest."
Question #4: Given the adverse consequences of section 212(a)(9)(B)(i) of the Act, should the Service grant advance parole to an alien who accrued more than 180 days of unlawful presence prior to applying for adjustment of status?
The answer is no. In light of the adverse consequences of section 212(a)(9)(B)(i) of the Act, Service officers generally should not grant advance parole to any alien who is known to have accrued more than 180 days of unlawful presence prior to filing the adjustment of status application under section 245(a) or 245(i) of the Act, unless it appears likely that the alien would, in the exercise of discretion, be likely to receive a waiver of inadmissibility when the adjustment of status application is adjudicated.
Question: #5: Should the I-512 Advance Parole Authorization be modified to advise aliens about the new unlawful presence grounds?
The answer is yes. Effective immediately, the following text should appear on all I-512 advance parole notices issued Service-wide and should replace the text currently in use:
"AUTHORIZATION: The holder of this authorization is an applicant for adjustment of status under the Immigration and Nationality Act. The holder departed the United States temporarily and intends to return to the United States to resume processing of the adjustment of status application. Contingent upon his or her prima facie eligibility, the holder of this document shall be paroled into the United States pursuant to the authority of [add authorizing official and authorizing office]. VALID FOR MULTIPLE APPLICATIONS FOR PAROLE INTO THE UNITED STATES.
"NOTICE TO APPLICANT: Presentation of this authorization will permit you to resume your application for adjustment of status upon your return to the United States. If your adjustment application is denied, you will be subject to removal proceedings under section 235(b)(1) or 240 of the Act. If, after April 1, 1997, you were unlawfully present in the United States for more than 180 days before applying for adjustment of status, you may be found inadmissible under section 212(a)(9)(B)(i) of the Act when you return to the United States to resume the processing of your application. If you are found inadmissible, you will need to qualify for a waiver of inadmissibility in order for your adjustment of status application to be approved."
Paul W. Virtue
Acting Executive Associate Commissioner
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FOOTNOTE:
[1] Although section 245(c)(2) of the Act requires that an alien must have continuously maintained a lawful status since admission or parole to be eligible to apply for adjustment of status under section 245(a) of the Act, this same provision does not apply to immediate relatives described under section 201(b) of the Act, and special immigrants described under sections 101(a)(27)(H),(I),(J), or (K) of the Act. Therefore, it is possible that some applicants for adjustment of status under section 245(a) of the Act may have accrued more than 180 days or more than 1 year of unlawful presence prior to filing the application. In such cases, they also become subject to the 3- or 10-year bar respectively, of section 212(a)(9)(B)(i) of the Act by departing while their application is pending.