The United States Board of Immigration Appeals (BIA) this Thursday changed an interpretation in force since 2012 and determined that leaving the country with an advance travel permit, known as advance parole, can count as a “departure” for the purposes of the three- and 10-year immigration bans for irregular presence.
What changed with the decision?
For more than a decade, the 2012 precedent established that a temporary departure from the United States carried out with advance parole did not constitute a “departure” that would activate the prohibitions for irregular presence.
Now, the BIA adopted the opposite interpretation: traveling abroad with advance parole can be considered a departure for the purposes of immigration law, even if the person later returns under that same permit.
The difference can be significant; A person who accumulates more than 180 days of irregular presence may face a three-year ban after leaving the United States, while anyone who has accumulated one year or more may be subject to a 10-year ban.
In certain cases, the person may need a waiver to overcome this inadmissibility and continue with an immigration process.
DACA is also among the programs affected
The change is especially relevant for some DACA beneficiaries, since those who have this protection can request advance parole to travel internationally for humanitarian, educational or work reasons.
USCIS information notes that DACA recipients need to obtain permission before traveling abroad and that travel authorized through advance parole did not previously interrupt their continued residence for DACA.
However, the new BIA decision modifies the analysis regarding unlawful presence bans. This means that having an approved advance parole should no longer automatically be interpreted as protection against those prohibitions when a person has enough accumulated unlawful presence.
The change, however, does not mean that all DACA recipients who travel will automatically receive a 10-year ban. The consequence depends, among other factors, on the immigration history and the amount of accumulated illegal presence.
