Don’t travel on advance parole!

The Board of Immigration Appeals (BIA) recently ruled that a person who departs the US on advance parole could trigger the 3/10-year bar and may not be able to return for a decade. My advice: if you have advance parole (through Deferred Action for Childhood Arrivals [DACA] or a pending adjustment of status application), do not travel outside the US. Or first consult with an immigration attorney before doing so.

Advance parole (AP) is permission to leave the US for a brief trip abroad, but more importantly, permission to return to the US after that trip. Many DACA recipients, as well as those with pending adjustment of status applications, would apply for advance parole. This was important, because there is a law that if a person has been out of status for more than 180 days and then departs the US, they could be banned from returning for between three and 10 years.

For over 14 years, under a previous BIA case, the rule was that if a person traveled outside the US on AP, they could safely return to the US without triggering the 3/10- year bar. No more! Under the new BIA case, that previous case was overruled, and traveling on advance parole will trigger the 3/10-year bar.

The reason and logic of the new case are that the 3/10-year bar is triggered when a person has been out of status for more than 180 days and then DEPARTS the US. For 14 years, the BIA held that an alien who leaves the US temporarily pursuant to a grant of advance parole does not make a “departure” from the US for purposes of triggering the 3/10-year bar. AP was an exception to triggering the 3/10-year bar. The new ruling states that advance parole is a departure from the US and the previous case was wrong and is thereby overruled.

What this means is if you were previously out of status for more than 180 days and you now travel on advance parole, you will trigger the 3/10-year bar.

I also want to clarify that this ruling does not affect people who leave the US through an approved PROVISIONAL WAIVER. There are occasions when a person is required to depart the US in order to obtain their immigrant visa abroad and would be subject to the 3/10-year bar. The provisional waiver forgives or waives the 10-year bar for purposes of consular processing, which is different from traveling on advance parole.

I know this can sound confusing, but if you have any issues involving departing the US, you should definitely consult with an attorney before doing so, rather than finding yourself unable to board the flight back to the US or being turned around at the airport for 10 years.