Advance Parole: A Useful Tool Against Consular Delays

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The Summer season often brings with it an increase in international travel, as people seek to take vacations, visit family, and attend to business around the world. That norm has been significantly disrupted for the last two years as the world continues to deal with fallout from the COVID-19 pandemic. From an immigration perspective, two of the primary areas that have most impacted global mobility have been the various Presidential Proclamations restricting travel, and the suspension of routine visa processing at all U.S. consulates and embassies worldwide. Although the U.S. Department of State announced that it would begin a phased resumption of routine visa services back in July 2020, this process has been exceedingly slow, with nearly all consular posts still operating at a significantly reduced capacity over a year later.

While there are some limited exceptions available to the travel-related proclamations/restrictions, and some consulates are offering limited visa appointments in emergency circumstances, it remains extremely difficult to navigate this maze in order to successfully obtain a nonimmigrant visa, which would generally be required to enable re-entry to the United States after travel abroad. Given these barriers to visa acquisition, an alternative that may be available to some individuals is known as “Advance Parole.”

Advance Parole is a form of temporary travel authorization that enables someone to seek admission to the United States; it is essentially a form of “advance” permission from the U.S. government to return to the U.S. after travel abroad. While Advance Parole does not guarantee reentry into the United States, and individuals with Advance Parole are still subject to the U.S. Customs and Border Protection inspection process at the port of entry upon return, a grant of Advance Parole would enable a traveler to board a flight for the United States, and in most cases would be sufficient to permit his or her re-entry to the U.S. upon arrival.

While there are some unique circumstances where Advance Parole can be granted on humanitarian grounds, the most common context in which it appears is for individuals who are seeking permanent resident status in the U.S. via the Adjustment of Status (“AOS”) process. AOS applicants are permitted to submit an application for Advance Parole along with their AOS application, and, once approved, the Advance Parole Document (APD) allows that individual to leave the United States while the green card application is pending, without having any impact on the pending green card application. (While there is an exception for individuals maintaining H or L status, the general rule is that individuals who have filed for Adjustment of Status cannot depart the U.S. while the AOS application is pending and before an Advance Parole Document has been issued, or else the application will be denied as abandoned).

In addition to enabling travel abroad during the pendency of the green card process, an APD also has the added benefit of allowing an individual to return to the U.S. without needing to have a valid visa in his/her passport. With it being nearly impossible to schedule an available appointment at many U.S. consulates and embassies to obtain visas these days, this makes travel on Advance Parole an attractive option for many individuals, even those in H or L visa status. Ordinarily, for individuals in H or L visa status who have applied for a green card through the Adjustment of Status process, it is advisable to continue using an H or L visa re-enter the US – even after they’ve been issued Advance Parole – so as to ensure that their H/L visa status is preserved and maintained. If such individuals were to re-enter the U.S. using Advance Parole, they would be “paroled” into the United States, as opposed to being re-admitted in H/L visa status. Since the grant of parole is tied to the pending Adjustment of Status application, if the AOS application were to be unexpectedly denied in that scenario, the grant of parole would be terminated and the individual could find him/herself without lawful status in the U.S. Alternatively, re-entering on an H/L visa would ensure that if the AOS application were unexpectedly denied, that individual would simply remain in valid H/L visa status.

Given the unique circumstances the pandemic has created, it has become more common for individuals to seek to re-enter the U.S. using Advance Parole, if they have been unable to secure a new/valid H or L visa while traveling abroad. Fortunately for those individuals, a memo from May 2000, issued by Michael D. Cronin of the legacy Immigration & Naturalization Service, clarifies that individuals in H-1 or L-1 nonimmigrant status who subsequently traveled abroad and were paroled into the United States via advance parole remain eligible for an extension of H-1 or L-1 status. In other words, even though a traveler may have been paroled into the U.S. and not re-admitted in H-1 or L-1 status pursuant to an H-1 or L-1 visa in their passport, USCIS will permit their employer to file a petition to “extend” the employee’s H-1 or L-1 status, and, if approved, the decision granting an extension has the effect of terminating the grant of parole and admitting the employee in the relevant nonimmigrant classification. This path may offer significant value to individuals with a need to travel abroad who are not able to obtain an H or L visa while abroad, but who wish to preserve their H or L visa status upon return to the U.S., as a safety net.

It is important to keep in mind that travel on Advance Parole does not by itself exempt the traveler from the geographic COVID-related travel proclamations. Therefore, unless the traveler is exempt from the travel ban based on having certain U.S. citizen or Lawful Permanent Resident family members, traveling to one of the affected countries (currently India, China, Iran, Brazil, South Africa, the United Kingdom, Ireland, and the Schengen Area) would subject that individual to the travel ban and restrict his/her ability to travel to the U.S., even using Advance Parole, and would require spending 14 days in a non-affected country before returning to the U.S., or obtaining a National Interest Exception to permit travel to the U.S. The Advance Parole remains a beneficial option, however, as most countries in the affected travel ban areas are refusing to issue visas at all to individuals unless they qualify for an exemption or a National Interest Exception to the travel ban. Thus, an Advance Parole document affords the holder the possibility of traveling to an affected travel ban area, then spending 14 days in a third country that is not in a travel ban area, and then proceeding to the U.S.

As a final note, those holding Advance Parole should be aware that their travel is authorized only during the validity period of a single Advance Parole Document. The APD must therefore be in-hand and valid both on the date the individual departs the U.S. and on the date on which he or she returns. An individual will not be authorized to return to the U.S. if the APD he or she held upon departure expires before his or her return, even if a renewal is pending, and even if a new Advance Parole Document is approved while he or she is traveling abroad.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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