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September 2018 Immigration Analysis - Changes to Advance Parole - September 21, 2018

Yesterday, we shared an update on the Travel Ban as currently in effect. Today, we are going to look at Advance Parole.

Parole was mentioned in Executive Order 13767 (summary of the E.O “Border Security and Immigration Enforcement Improvements) as a process being considered for re-interpretation. Advance parole is a document (often included on an employment authorization document or “EAD”) that allows travel during the final processing of permanent residence (also known as the “adjustment of status” process).  If a person files for adjustment of status to obtain permanent residence in the U.S., leaving the U.S. in most cases will abandon that application (an exception exists for H or L visa holders).  Advance parole is typically approved for at least one year.  An extension typically takes two to four months (but could take longer).

Abandonment of the Advance Parole Application

The only change to advance parole officially implemented to date is that a person applying for advance parole abandons the advance parole application if she leaves the U.S. even if she is in possession of a valid advance parole or a visa (H or L) that would allow travel without abandoning the adjustment of status application.

Typically, advance parole is applied for with an application for an EAD because a “combo card” is now issued that includes both in one document.  International travel does not abandon the request to extend the EAD but does abandon the request to extend the advance parole.

This rule is supremely inconvenient for people who must travel for work or personal obligations.  It effectively means that a break in travel of two to six (or more) months is required to extend the travel document.

Expedited adjudication of any application is available if the reason for the request to expedite fits the criteria recognized by the U.S. Citizenship & Immigration Service1.  Travel on an H or L visa also does not abandon the adjustment of status application. Another option for frequent travelers is to process the permanent residence application at a U.S. consulate abroad.

The rule particularly limits travel for Indian and Chinese nationals who had the opportunity to file adjustment of status due to forward movement of the visa waiting line, but then are stuck in that process for years due to “retrogression” (i.e., backward movement) of that same waiting line. Abandonment of adjustment of status in this situation would mean years of waiting before another adjustment of status application could be filed.

If traveling on advance parole, never remain outside the U.S. longer than the validity of the advance parole document without first clearing this strategy with your attorney.

Reason for Travel Now Required?

Recently the government posted a checklist for the documents required to apply for advance parole. Included on this list are two requirements that have not been the norm for several years: Evidence that your trip is for educational, employment, or humanitarian purposes, and an explanation or other evidence showing the circumstances that warrant issuance of an advance parole document.

Because this checklist was issued very recently, we do not have experience in whether failure to provide this information will result in denial of an advance parole application or how the requirement will be interpreted. We recommend providing this information on all advance parole applications.

Severe financial loss to company or person; emergency situation; humanitarian reasons; nonprofit organization whose request is in furtherance of the cultural and social interests of the United States; Department of Defense or national interest situation (must come from an official U.S. government entity and state that delay will be detrimental to the government); USCIS error; or compelling interest of USCIS.

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