Deferred Action, Advance Parole, and Adjustment of Status

Deferred Action, Advance Parole, and Adjustment of Status

January 8, 2015
Deferred Action, Advance Parole, and Adjustment of Status
refers to an entry–which does not constitute an admission –
The Obama Administration’s recent announcement that it is
that is also authorized by immigration officials. See INA
expanding its Deferred Action for Childhood Arrivals
§101(a)(13)(A), 8 U.S.C. §1101(a)(13)(A) (admission);
(DACA) initiative, and creating a DACA-like program for
INA §212(d)(5)(A), 8 U.S.C. §1182(d)(5)(A) (parole).
unlawfully present aliens whose children are U.S. citizens
or lawful permanent residents (LPRs), has prompted
Aliens who are unlawfully present, either as the result of an
questions about whether and how deferred action
unauthorized entry or because they overstayed a visa or
beneficiaries could acquire LPR status as the result of a
otherwise violated the conditions of their temporary
grant of advance parole. DACA beneficiaries may currently
presence in the United States, are also often inadmissible
be granted advance parole for humanitarian, educational, or
pursuant to INA §212(a)(9)(B)(i), 8 U.S.C.
employment purposes, and the Executive is expected to
§1182(a)(9)(B)(i). INA §212(a)(9)(B)(i) generally bars
make similar provisions for the aliens granted deferred
aliens who have been unlawfully present in the United
action through its new initiatives.
States for a period of more than 180 days and less than 1
year from admission within 3 years of their “departure or
As explained below, some aliens granted advance parole
removal.” Those who are unlawfully present for one year or
could potentially acquire LPR status because of how certain
more are generally barred from admission for 10 years.
provisions of the Immigration and Nationality Act (INA)
are construed. However, there are statutory limits upon who
Advance Parole Pursuant to INA §212(d)(5)(A)
may acquire LPR status in this way, and a grant of advance
parole is not the only way such aliens could become LPRs.
A grant of advance parole pursuant to INA §212(d)(5)(A)
could, however, help an alien to qualify for adjustment of
Basic Legal Framework
status by enabling the alien to (1) leave the United States
and return to it in such a way that the alien is seen to have
The INA’s provisions regarding adjustment of status,
been “inspected and admitted or paroled” and (2) avoid the
parole, and the 3- and 10-year bars upon the admission of
3- and 10-year bars on admission that would generally be
aliens who have been unlawfully present in the United
triggered by the “departure” of aliens who have been
States for more than 180 days apparently have been
unlawfully present in the United States for over 180 days
construed to permit aliens to acquire LPR status as the
(and thus potentially be “admissible...for permanent
result of advance parole.
residence”).
Adjustment of Status Pursuant to INA §245(a)
“Inspected and Admitted or Paroled”
INA §245(a) generally permits the Secretary of Homeland
Advance parole is one type of “parole” pursuant to INA
Security, “in his discretion and under such regulations as he
§212(d)(5)(A), which generally grants the Secretary of
may prescribe,” to adjust the status of any alien “who was
Homeland Security broad authority to permit the entry of
inspected and admitted or paroled into the United States” to
any alien applying for admission into the United States,
that of an LPR provided the alien is “admissible ... for
“under such conditions as he may prescribe,” on a “case-by-
permanent residence,” among other things. (Adjustment is
case basis for urgent humanitarian reasons or significant
also possible under other provisions of the INA, but the
public benefit.” Specifically, advance parole has been used
discussion in this “In Focus” is limited to adjustment
to permit the return to the United States of certain aliens
pursuant to INA §245(a).)
who have been physically present within the country, but
lack any generally recognized legal right to return to the
The requirements that an alien (1) has been “inspected and
country after leaving it.
admitted or paroled” and (2) is admissible as an LPR
generally serve to limit unlawfully present aliens’ eligibility
Aliens who leave the United States and return pursuant to a
to adjust their status while within the United States, even if
grant of advance parole have historically been seen to have
the alien has a family member or an employer who is able
been “inspected and admitted or paroled,” and, thus, as
and willing to sponsor the alien for an immigrant visa.
having met the first requirement for adjustment of status.
Aliens who are unlawfully present as the result of having
entered the United States without authorization generally
cannot satisfy the requirement that an alien have been
“inspected and admitted or paroled” in order to qualify for
adjustment of status. Under the INA, admission specifically
refers to the “lawful entry of an alien ... after inspection and
authorization by an immigration officer,” while parole
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Deferred Action, Advance Parole, and Adjustment of Status
inadmissible and, by extension, ineligible for adjustment
When are aliens granted advanced parole?
“solely by virtue of a trip abroad that was approved in
The Executive has general y broad discretion as to whether and
advance by the United States Government.”
when to grant advance parole. However, DHS’s Frequently
Asked Questions (FAQ) regarding the initial grant of DACA
Limitations on Adjustment under INA
expressly provide that initial DACA beneficiaries, at least, may
§245(a)
be granted advance parole to travel abroad for humanitarian,
educational, or employment purposes. The FAQ further specify
Not all aliens granted advance parole will qualify for
that humanitarian purposes may include medical treatment,
adjustment of status even after the BIA’s 2012 decision,
funeral services for family members, or visiting ailing relatives;
however. This is, in part, because other grounds of
educational ones, semester-abroad programs or research; and
inadmissibility—beyond the 3- and 10-year bars—could
employment ones, overseas assignments, interviews,
still apply. These include criminal and security grounds.
conferences, training, or client meetings.
Aliens who are not “immediate relatives” (e.g., spouses,
“Admissible ... for Permanent Residence”
minor children) of U.S. citizens are generally also ineligible
for adjustment because INA §245(a) requires that an
As the result of a 2012 decision by the Board of
immigrant visa be “immediately available” to the alien at
Immigration Appeals (BIA), the highest administrative
the time when s/he applies for adjustment. However, aliens
tribunal for interpreting and applying immigration laws,
who are not immediate relatives of U.S. citizens are
aliens who leave the United States and return pursuant to a
generally subject to statutory caps on the number of
grant of advance parole could also be seen to be admissible,
immigrant visas issued per year that can delay the issuance
notwithstanding the 3- and 10-year bars prescribed in INA
of visas (i.e., make them not “immediately available”).
§212(a)(9)(B)(i), and, thus, eligible for adjustment of status.
In addition, INA §245(b) expressly bars certain aliens from
Prior to 2012, aliens who left the United States pursuant to
adjustment of status, including aliens (other than
a grant of advance parole after having been unlawfully
“immediate relatives”) who were employed while lacking
present for more than 180 days were generally seen as
employment authorization; have otherwise violated the
inadmissible and, as a result, were considered ineligible for
terms of a nonimmigrant visa; or are not in legal status
adjustment. This was because leaving the country pursuant
when they apply for adjustment.
to a grant of advance parole was seen as a “departure” for
purposes of INA §212(a)(9)(B)(i). The BIA’s 2007 decision
Waivers of the 3- and 10-Year Bars Also
in Matter of Lemus, 24 I. & N. Dec. 373 (BIA 2007), was
Possible
generally seen to support this view by holding that the term
“departure” is broadly construed:
It should also be noted that adjustment as the result of a
grant of advance parole is not the only means by which
to encompass any ‘departure’ from the United
aliens granted deferred action (among others) could acquire
States, regardless of whether it is a voluntary
LPR status. INA §212(a)(9)(B)(v) expressly permits the
departure in lieu of removal or under threat of
Secretary of Homeland Security to waive the 3- and 10-year
removal, or it is a departure that is made wholly
bars for aliens who are the spouses, sons, or daughters of
outside the context of a removal proceeding.
U.S. citizens or LRPs, if the Secretary determines that
refusing admission to the alien would result in “extreme
The BIA there emphasized that its interpretation was based
hardship” to the alien’s citizen or LRP spouse or parent.
on the “plain meaning” of the statute, which, in its view,
(Aliens are granted such waivers in conjunction with
gave no “indication that Congress intended to limit the
leaving the country to obtain an immigrant visa.)
plain and ordinary meaning of the term ‘departure’” to
exclude aliens whose “departure” was not removal-related.
Such waivers differ from a grant of advance parole,
however, in that a waiver requires a finding of “extreme
However, the BIA subsequently adopted a narrower
hardship” to a qualifying relative, while a grant of advance
interpretation of “departure” in its 2012 decision in Matter
parole does not.
of Arrabally and Matter of Yerrabelly, 25 I. & N. Dec. 771
(BIA 2012). There, when specifically confronted with the
The Obama Administration’s recent actions also call for the
cases of two aliens who had left the United States for India
development of “additional guidance” on what constitutes
several times between 2004 and 2006 pursuant to a grant of
“extreme hardship” for purposes of such waivers.
advance parole, the BIA held that an alien who “has left and
returned to the United States under a grant of advance
Kate M. Manuel, kmanuel@crs.loc.gov, 7-4477
parole has not made an ‘departure from the United States’

within the meaning of [INA §212(a)(9)(B)(i)].” The BIA
reached this conclusion by distinguishing departure
IF10044
pursuant to a grant of advance parole from other departures,
such as that at issue in Lemus. It also noted that, while the
legislative history of INA §212(a)(9)(B)(i) is “rather
sparse,” Congress did not intend an alien to become
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