Advance Parole May Soon Disappear

US Citizen and Immigration Service (USCIS) has started to strictly enforce the restrictions on advance parole. For example, as is stated in the instructions to the advance parole form (I-131), a departure while the advance parole is pending, if based on an adjustment of status (I-485) filing, will result in the abandonment of the I-485. This has been true for many years. The exception has been for those in H or L status.

What has changed is that for those in H or L status who leave the US while the I-131 is pending now find that although I-485 is protected, the I-131 will be deemed abandoned and denied.

Even of greater concern is that this line of adjudicating will almost certainly lead to strict enforcement of the eligibility for advance parole in the first place. The Immigration Act clearly states that advance parole can only be granted by USCIS on a “case-by-case” basis and then only for urgent humanitarian reasons or for significant public benefit.

So, how did we obtain advance parole all these years, simply by filling the form and asking for it? In 1992, the old INS issued a memorandum to its officers stating that advance parole requires no showing of any reason as long as it is for normal personal or business travel. This directly contradicts the Immigration Act and it is only a matter of time before USCIS starts strictly enforcing the requirement, no matter how cumbersome this will be for employers and families. And this will also be one more of hundreds of reasons that our entire immigration system must be overhauled and updated for the 21st century.

Finally, it appears this issue came up as a result of the legal arguments challenging President Obama’s DACA Executive Order. The Immigration Service had created prosecutorial discretion and deferred action by internal rule. There is no part of the Immigration Act which addresses those concepts. Therefore, there is no case-by-case requirement for those enforcement mechanisms. It does not matter if the Service grants one deferred action or 800,000. That is why the Executive Order was never struck down in court. But it is only a matter of very short time before the Service applies this analysis to advance parole which definitely is restricted by the Act to two very narrow justifications rather than blanket approval for all who ask for it.