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USCIS Redefines Admission, Departures, and DACA Travel Eligibility in Proposed Revisions to Form I-131 (2 of 2)

Yesterday, we wrote about USCIS’ recent proposal for revisions to the Form I-131, Application for Travel. Although the proposal was published in the Federal Register on November 27th, there’s been relatively little chatter on this topic but our readers certainly had their own opinions!

DACA Travel Eligibility

In its proposed revisions, USCIS instructs individuals who have received a grant of DACA, and not any time before that, may apply for an advance parole on one of the three bases: educational, employment, and humanitarian. A review of the humanitarian grounds though, reveals USCIS is willing to allow travel for very restricted reasons. [Brings to mind U.S. restrictions on travel to Cuba….] Attorney Randall Caudle, of the Law Offices of Randall Caudle in San Francisco, California, expressed his disappointment.

The current regulations, as they exist, allow foreign nationals who have pending legal permanent resident applications to apply for advance parole without being subjected to any restrictions. “I do not believe that DACA approved individuals, or anyone else, should have to show exceptional & compelling reasons for travel.” Given that many DACA recipients would have been unable to visit family members abroad for the duration of time spent in the U.S., limiting the humanitarian grounds of eligibility to medical necessity and to a family member’s serious illness or death is disappointing indeed. Mr. Caudle is probably not alone in hoping USCIS would eliminate some of the barriers for international travel for DACA recipients and other foreign nationals. The USCIS should “grant Parole-in-Place to all of the spouses of U.S. citizens who entered the U.S. without inspection and not just spouses of active U.S. military members.”

The public is encouraged to provide written comment on these guidelines addressed to the OMB USCIS Desk Officer and DHS via email at [email protected] with reference to “OMB Control Number [1615-0013].” The deadline to submit comments is December 31, 2012. All comments submitted are made accessible to the public so please consider any sensitive or confidential information when submitting your comments. USCIS Redefines “Departure”

For many practitioners, a recent Board of Immigration Appeals (BIA) case made important headlines regarding the role of being paroled into the country vis-à-vis inadmissibility grounds. According to Attorney Gerry Chapman, of Chapman Law Firm in Greensboro, North Carolina,Matter of Arrabally held “that a person who leaves the U.S. with an advance parole document has NOT departed under the meaning of that term for purposes of Section 212(a)(9)(B).” In its revised Form Instructions to Form I-131, USCIS provides the following on page eight of the Table of Changes:

Leaving the United States with an Advance Parole Document is a “departure” from the United States for all purposes under the U.S. immigration laws except that it is not a “departure” solely for purposes of inadmissibility under INA section 212(a)(9)(B) (inadmissibility due to prior unlawful presence), if you are paroled into the United States on the basis of such document. Any other departures without first obtaining Advance Parole may subject you to the inadmissibility provisions of INA 212(a)(9)(B).

How does this language comport with Arrabally and what impact does it have for foreign nationals applying for an advance parole? Mr. Chapman explained that USCIS is effectively incorporating theArrabally holding into its instructions. This is not a surprise because USCIS must follow the decisions that are made by the BIA. Though, the revisions also appear to broaden Arrabally’s holding:

Advance parole is available in several contexts, including Deferred Action for Childhood Arrivals (DACA). This instruction states that as long as you have received advance parole, and then leave, and you have no other ground of inadmissibility, you are not going to be excluded under 212(a)(9)(B). It does not limit this comment to the situation in Arrabally (advance parole issued to a person with a pending adjustment case). It broadens Arrabally, which was surprising to me and will be helpful to people with temporary protected status (TPS) who get advance parole, etc.

In spite of Arrabally and this revision, the biggest area for concern for foreign nationals are other reasons that may prevent re-entry into the U.S. “If such a person has another ground of inadmissibility, then he or she has a problem, because this instruction leaves open that basis for excluding the person,” Mr. Chapman warns. As a rule of thumb, we always encourage foreign nationals to consult with experienced legal immigration counsel on issues related to international travel. The worst-case-scenario is traveling internationally only to be refused entry into the U.S., or worse…. USCIS Redefines “Admission” [?] In its next revision on page eight, USCIS states:

If you use an Advance Parole Document to leave and return to the United States, you will, upon your return to the United States, be an “applicant for admission.”

What implications does this have on a practical level for foreign nationals entering the U.S. with an advance parole? In the past, parolees (individuals who used an advance parole to enter the U.S.) maintained status that was, for the most part, unique from other foreign nationals who held non-immigrant status. This revision effectively suggests that parolees will be treated much differently moving forward. Mr. Caudle provided this example:

If person enters the U.S. as a parolee, they have been inspected and admitted and are thus eligible to adjust status if there is a path for adjustment of status available. If a spouse of a U.S. citizen who originally entered the U.S. without inspection, leaves using an advance parole document and returns, that spouse now has a lawful admission and can file an adjustment of status for U.S. legal permanent residence.

This is B-I-G!

[Update 12/13/2012]  But not so fast, instructed Attorney Jesse Lloyd, of Bean + Lloyd, LLPof Oakland, CA, who cautioned me on the use of the word “redefining.”  Mr. Lloyd states, “It may be possible for someone who entered without inspection to become eligible to adjust by departing the U.S. and returning on parole.  That does not mean, however, they have been ‘admitted.’”  Moreover, this particular strategy raises many ethical issues amongst practicing attorneys and remains a point of contention. Mr. Lloyd explains there are very important legal differences between inspection, admission and parole, all of which affect whether an individual is legally defined as “admitted” under U.S. law. (See INA Sections 245(a) and 212(d)(5).)

The main significance of reminding someone they remain an applicant for admission after a parole entry is because applicants for admission generally have fewer rights in removal proceedings even than folks who enter without inspection.  For example, if they are detained by DHS they are not entitled to a bond hearing in front of an immigration judge.  Also, while they might be able to renew a denied adjustment in removal court, they likely could not file a new application in front of the immigration judge.

In essence, the revised instructions renews the reminder that parole is discretionary.  Mr. Lloyd thinks this is rather ominous, implying that individuals leaving on parole are still taking significant risks.  There was a similar caveat actually added to the Arrabally case. How this matter plays out in actual practice has yet to be revealed….  [Though, it’s clear that any revision on a Form Instruction would probably serve the general public more effectively if it were drafted in lay-person terms.]

The Role of the Form Instructions

If the revisions are made to the Form Instructions, what force of law does it have? Is it mere suggestion and not legally binding upon re-entry into the U.S.? According to Mr. Chapman, the regulations say it’s legal, so long as it does not controvert existing case law. We’ll have to wait and see whether these instructions survive and in practice, how they affect the population.

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How did you interpret the revisions for admission and departure? Do you agree with our legal experts? We know that expert minds will differ. We’d love to get your input. Please leave us a message below and subscribe to the Case Management Guru Blog for more updates related to immigration and DACA. Disclaimer: The information contained in this blog post is provided for educational purposes only, and should not be construed as legal advice or as a substitute for legal counsel.  The updates may be revised without advance notice.   If you have questions regarding properly applying for DACA or other DACA-Related issues, please consult a qualified immigration attorney.