By Attorneys Robert L. Reeves and Erin Lee

Individuals who depart the United States after having lived here without lawful status for one year or more are barred from returning for 10 years.  The “10-year bar” is a statutory penalty for having accrued one year or more of unlawful presence in the U.S.  The bar is triggered upon departure from the U.S.  If an individual with a 10-year bar returns without being lawfully admitted, that bar becomes a permanent one.Individuals who depart the United States while their application for adjustment of status is pending incur an additional problem.Normally, when one leaves the U.S. while their adjustment of status application is pending, that application is considered abandoned.

To avoid abandoning the application, the applicant must apply for and obtain advance parole prior to leaving the U.S. Aliens who had one year or more of unlawful presence but had received advance parole from USCIS reasonably believed that they would be readmitted into the US upon their return without having incurred a 10 year bar.  Unfortunately, USCIS did not agree.

USCIS had taken the position that a person who obtains advance parole and returns lawfully is subject to the 10-year bar. The position was based on the conclusion that the person “departed” the U.S.  However, recently, that position has been overturned by the Board of Immigration Appeals in a seminal case, Matter of Arrabally.

Exiting the U.S. with advance parole no longer triggers the unlawful presence bar. In Matter of Arrabally, the BIA came to the conclusion that advance parole is a distinct benefit, and is “qualitatively different from other departures, because it presupposes both that he will be permitted to return to the United States thereafter and that he will upon return, continue to pursue the adjustment of status application he filed before departing.”
In other words, leaving the US under a grant of advance parole does not constitute a “departure” for the purposes of triggering the unlawful presence bar.  This is a significant victory for individuals who need to travel during the pendency of their adjustment of status application.

Matter of Arrabally is also a significant victory for those who have previously been denied adjustment based on their ineligibility for an unlawful presence waiver after departure under advance parole.
These individuals may now have grounds to reopen their adjustment of status application, pursuant to new case law. The Board of Immigration Appeals cautioned that the decision did not protect an applicant of other grounds of inadmissibility.   Applicants who are subject to inadmissibility for prior criminal convictions or misrepresentations will still need to obtain waivers in order to obtain their green cards.

Moreover, if for any reason, the pending application for adjustment of status is denied, the applicant could be placed into removal proceedings as an “arriving alien,” which could significantly affect their eligibility for relief. Leaving the United States, where one has accrued unlawful presence is a very intricate issue.  Many different factors play a part in determining whether a bar is in effect, and if so, if any relief is available from that bar.  Therefore, it is imperative to consult an experienced and knowledgeable immigration attorney before leaving the country to find out the risks of departure and the possibility of return.

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