INS Memo on Advance Parole under NACARA
[This is the third NACARA-related instruction issued by INS HQ. The first two (which were not numbered as NACARA instructions) were date November 19, 1997 and December 19, 1997.]
Date: December 24, 1997
To: Regional Directors
District Directors
Service Center Directors
Officers In Charge
Regional Counsel
District Counsel
Office of International Affairs
From: Office of Programs
This memorandum provides interim guidance on the issue of advance parole for the Nicaraguan Adjustment and Central American Relief (NACARA) adjustment applicants.
Section 202 of NACARA allows certain Nicaraguan and Cuban nationals who are in the United States to adjust status to that of lawful permanent resident. In order to be eligible for benefits under NACARA, an applicant must be a national of Nicaragua or Cuba; must be admissible to the United States under all provisions of section 212(a) of the Act, other than those provisions specifically exempted by NACARA; and must have been physically present in the United States for a continuous period beginning not later than December 1, 1995, and ending not earlier than the date the application for adjustment is filed. In addition, certain dependents of NACARA beneficiaries are also eligible for adjustment of status under NACARA.
This guidance is effective immediately and will be supplemented after publication of the interim rule on NACARA and the beginning of the adjustment filing period. This guidance is applicable only to nationals of Nicaragua or Cuba who may seek benefits or be eligible under section 202 of NACARA, the adjustment of status provision. This guidance is not applicable to nationals of El Salvador, Guatemala, and the former Soviet Bloc countries who may be eligible for suspension of deportation or cancellation of removal pursuant to section 203 of NACARA.
(A) An application for advance parole may be approved, in the discretion of the district director, for any national or Nicaragua or Cuba who files an Application for Travel Document (form I-131), with fee, demonstrate eligibility for adjustment under NACARA, and is seeking to depart temporarily for any legitimate business or personal reason. Aliens who are ineligible for adjustment under NACARA (e.g., certain criminals and principal aliens who have already been absent from the U.S. for more than 180 days since 12/1/95) cannot be issued an advance parole pursuant to this guidance.
(B) Demonstration of eligibility for adjustment under NACARA requires submission of evidence that the applicant, prior to December 1, 1995:
(1) Applied to the Attorney General for asylum;
(2) Was issued an order to show cause under section 242 or 242B of the
Act (as in effect prior to 4/1/97);
(3) Was placed in exclusion proceedings under section 236 of the Act
(as in effect prior to 4/1/97);
(4) Applied for adjustment of status under section 245 of the Act;
(5) Applied to the Attorney General for employment authorization;
(6) Performed a service, or engaged in a trade or business, within the
U.S. which is evidenced by records maintained by the Commissioner of
the Social Security Administration; OR (emphasis added)
(7) Applied for any other benefit under the Act by means of an
application establishing the alien’s presence in the United States
prior to 12/1/95.
While the Service is not pre-adjudicating the application for adjustment, the advance parole applicant must submit a photocopy of one or more of the documents listed above in support of the Form I-131.
(C) Advance parole applicants must be cautioned that any absences, with or without advance parole, prior to filing for NACARA adjustment will be added to the time spent outside the United States. NACARA adjustment applicants aggregating more than 180 days outside the U.S. lose eligibility for adjustment. If there is evidence that the alien has been outside the U.S. for more than 180 days or is inadmissible (except for section 212(a)(4),(5), (6)(A),or (9)(A), or (9)(B) of the Act), advance parole should not be granted. Furthermore, the district director should not issue an advance parole for a period of time that would place the alien beyond the 180-day limitation.
(D) Any Nicaraguan or Cuban who is also the spouse or child of a NACARA adjustment applicant may be granted advance parole regardless of the number or duration of prior absences, and need not submit any of the documents listed in section (B) of this memo. Such dependents need only establish their relationship to an eligible NACARA principal, in addition to establishing the principal alien’s eligibility. (Note: This section does not apply to an unmarried son or daughter of a NACARA adjustment applicant - for advance parole purposes, they have the same requirements as a principal NACARA applicant.)
NACARA adjustment applicants requesting advance parole may fall into on of three categories:
- Aliens note in proceedings may generally be granted advance parole by the district director, as described above.
- Aliens in pending proceedings may be granted advance parole by the district director as described above provided the Service has agree, or will agree, to administrative closure of the proceedings for the purpose of pursuing NACARA adjustment. (Generally, if the applicant appears eligible for adjustment under NACARA, the Service will not oppose such administrative closure.) Before considering an I-131, the district director must first make a decision about whether the Service intends to oppose administrative closure. Until the decision on administrative closure is made, advance parole should not be granted pursuant to this guidance. If the district director decides to oppose administrative closure, only the Assistant Commissioner for International Affairs may approve the I-131.
- An alien already under a final order of deportation or removal may be granted advance parole by the district director only if a Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal, and any required individual waiver (i.e., under section 212(e), 212(g), or 212(i) of the Act) have been approved. If the alien departs without the I-212 being approved, the bar to reentry will apply.
Whenever possible, Service files should be reviewed prior to issuance of any advance parole. In questionable cases, please consult with your district counsel.
Paul Virtue
Executive Associate Commissioner
Office of Programs