Immigration Benefits for DACA Recipients who Travel on Advance Parole

Recent changes in immigration law may allow Deferred Action for Childhood Arrivals (DACA) recipients to obtain lawful permanent residence in the United States by using advance parole to adjust their status.

The Department of Homeland Security (DHS) has the discretionary authority to parole an individual into the United States on certain humanitarian or public benefit bases.  Advance parole offers an individual who is in the United States advance authorization to enter the country after temporary travel abroad for humanitarian, educational, or employment reasons.

On June 15, 2012, the Secretary of DHS announced that certain individuals, who entered the United States before turning 16 and who meet certain guidelines, may pursue Deferred Action for Childhood Arrivals (DACA).[1]  One of DACA’s benefits is that its recipient is authorized to apply for advance parole.  When such a recipient is granted advance parole, travels abroad, and then returns to the United States, she is considered an “applicant for admission” when she is “paroled” into the United States within the meaning of Immigration and Nationality Act § 245(a).  Moreover, in April 2012, the Board of Immigration Appeals held that leaving the United States on advance parole did not effectuate a “departure” for the purposes of triggering the unlawful presence bar.[2]  As such, advance parole may make some DACA recipients, who entered the United States without inspection, but who are pursuing lawful permanent residence through immigrant visa petitions, eligible for adjustment of status.

DACA recipients who would be eligible to take advantage of this immigration benefit will be those who qualify as “immediate relatives” of U.S. citizens, such as the spouse or child of a U.S. citizen or parent of an adult U.S. citizen.  For example, generally, an individual who is married to a U.S. citizen, but had previously entered the United States without inspection, cannot apply for adjustment of status to gain lawful permanent residence.  However, in light of Matter of Arrabally and Yerrabelly, when an individual who is married to a U.S. citizen and was granted DACA leaves and then returns to the United States on advance parole, she is properly “inspected and admitted,” and thus eligible for adjustment of status.

Unfortunately, DACA recipients who are in a preference category and who have worked without authorization, or have been in the country without lawful status, would not qualify to adjust status under INA § 245(a).[3]  However, for those DACA recipients who are married to a U.S. citizen or qualify as children of U.S. citizens, traveling on advance parole may be advantageous in that it not only terminates their exposure to the unlawful presence ground of inadmissibility, but it also establishes their eligibility to adjust status in the United States.


[1] Individuals who are eligible for DACA may request consideration of deferred action for a period of two years, subject to renewal, and would then be eligible for work authorization.

 

[2] See Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012).

 

[3] See INA § 245(c)(2); 8 CFR § 245.1(d)(3); AFM at 40.9.

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