As a result of a new ruling on Thursday (US time), certain immigrants now face a riskier path to obtaining lawful permanent residence, aka, Green Cards, in the United States.
The Board of Immigration Appeals (BIA), an administrative appellate body within the US Department of Justice (DOJ), ruled that immigrants traveling outside the country on advance parole could face a three- or ten-year unlawful presence bar if they accrued more than 180 days of unlawful presence before departing.
According to immigration law firm Fragomen, legislation enacted in the late 1990s established that foreign nationals who leave the US after accruing unlawful presence face specific re-entry bans: a three-year bar for 180 days to one year of unlawful presence, and a ten-year bar for one year or more. During these periods, individuals are ineligible for visas, re-entry, or adjustment of status to permanent residence.
New immigration ruling overrules an older one
The August 13 decision in the ‘Matter of Delcarmen-Lara, 29 I&N Dec. 830’ case reversed a previous BIA case from 2012 (‘Matter of Arrabally and Yerrabelly’) that stated travelling abroad on an advance parole wouldn’t qualify as a departure from the US, and so it wouldn’t trigger the unlawful presence bar.
The sudden reversal of the long-standing decision means that foreign nationals who have accrued over 180 days of unlawful presence can no longer travel abroad on advance parole without triggering the “ban.”
Advance parole is a special travel document issued by US Citizenship and Immigration Services (USCIS), allowing certain non-citizens to leave the country temporarily and return lawfully. It helps prevent international citizens’ applications for more permanent immigration status, including Green Card, adjustment of status, and asylum, from being deemed abandoned upon travelling abroad.
BIA has maintained that the major change would be applied “prospectively.” It means the ruling will apply only to cases filed after the decision date, as foreign nationals and practitioners have long relied on the prior rule. Going forward, traveling outside the US on advance parole will be viewed as a “departure.”
The latest setback for certain foreign nationals comes amid the Trump administration’s broader immigration crackdown, which has even targeted legal immigrants in the US.
Recently, a US Supreme Court ruling allowed the Trump government to strip protections for Haitians and Surians. Temporary Protected Status (TPS) is also set to end for hundreds of South Sudanese nationals in the US after a district judge rejected immigrant rights organisations’ efforts to keep the special status for this group of foreign nationals residing in America.
Addressing the shift, USCIS spokesperson Zach Kahler told Newsweek that the ruling was in line with a “straightforward principle” that departing from the United States means something.
“The immigration laws enacted by Congress impose consequences when someone who has accrued unlawful presence leaves the country and later seeks admission, including when that departure occurs under advance parole,” he told Newsweek. “US. Citizenship and Immigration Services will ensure that immigration filings are decided based on the laws, regulations, and binding legal precedent that govern each case.”
Disclaimer: This article is for general informational purposes only and does not constitute legal, immigration, or tax advice. Immigration laws and government policies are subject to frequent change without notice. While we strive to provide accurate updates, readers are strongly advised to verify the latest requirements with the official embassy, consulate, or government portal of the respective country. Financial Express is not responsible for any decisions made based on this information. For personalised guidance, please consult a qualified immigration attorney or a certified professional advisor.