§§ 212(d), of the
Immigration and Nationality Act of 1952, Pub. L. No. 82-414, 66
Stat. 163, 8 U.S.C. § 1182.
8 C.F.R. § 212.5(e) (1998)
(c) 1999, 2000 VIKRAM BADRINATH, P.C. All rights reserved.
Generally, if an alien leaves the United States during the interim period between when he files an Application for Adjustment of Status with the with the U.S. INS and the date of final adjudication by the U.S. INS (e.g., the interview date), the Aplication for Adjustment of Status is automatically deemed abandoned. Hence, the Advance Parole document (Form I-512) was created to permit an alien to travel outside of the United States for business or personal reasons while his adjustment of status application is pending, and resume his application upon reentry into the country. The alien should not depart the United States while his an Application for Adjustment of Status is pending unless he has an received an Approved Advance Parole document (Form I-512). The mere filing of an application for Advance Parole does not permit the alien to depart the United States.
Accordingly, an alien may not file for an Advance Parole Document unless he is also filing, or has already filed, an Application for Adjustment of Status. The alien must be in the United States at the time of filing the advance parole application.
If an alien has been "unlawfully present" in the United
States for more than one hundred and eighty days (180) days or
one (1) year, he should neither depart the United States nor
apply for an Advance Parole while his Application for Adjustment
of Status is pending. Even though an alien may be eligible
to adjust status, and he may even receive an advance parole
document from the United States to depart, he be barred from
re-entering the United States for a period of three (3) to ten
(10) years once he departs
United States after
having accrued one hundred eighty days (180) or one (1) year of
"unlawful presence." Under the new immigration laws, an
alien may be inadmissible
enter the United States or receive an immigrant visa (visa
Adjustment of Status or Consular Processing) under § 212(a)(9)
of the Immigration and Nationality Act. An alien is considered to
be "unlawfully present" in the United States if This is
just another one of the many ways in which the U.S. INS continues
to confuse and abuse the system to immigrants. Even if the U.S.
INS issues and authorizes you to depart the United States and
return with an Advance Parole Document (Form I-512), you MAY
STILL be denied admission to the United States.
"Unlawfully present "is defined as someone who has entered the United States unlawfully and currently resides in the U.S. unlawfully for more than 180 days AFTER April 1, 1997. This term DOES NOT apply to visa overstays or individuals who violate the terms of their status.
Hence, before departing the U.S. an alien who possess a VALID ADVANCE PAROLE document should not assume that they can depart w/o problems, but should ensure that they have not been in the U.S. unlawfully for the respective periods.
The advance parole request is filed on Form I-131. It must be accompanied by three (3) photographs and a letter explaining the need for travel. It can, and should, be filed concurrently with an Application for Adjustment of Status. Expedited requests for Advance Parole can be made, but normally require a showing of emergent need such as documented serious illness of an immediate relative (e.g., a letter from the treating physician describing the diagnosis, prognosis, any medications and/or treatment received, and desirability for visitors), or immediate business necessity.
For more information about Advance Parole, please contact us by email, telephone, or fax or schedule an appointment to have your individual case discussed and analyzed an attorney.