Immigration Fact And Fiction For The U.S. Employer: Abrupt Change To Advance Parole Adjudications Without Clear Policy Objective – A Modest Proposal

A learned colleague, Rob Cohen blogged, what could be called "a cry into the wilderness" in 2014 suggesting that the regulation at 8 C.F.R.§245.23(j) be amended so that an individual who departed the United States before an application for "Advance Parole Authorization" was adjudicated would not have been deemed to have abandoned her application for adjustment of status.1 He described a compelling case of an applicant with a dying father and the logistic nightmare she went through to obtain Advance Parole authorization on an expedited basis.

The wilderness has now become even more unfriendly, as apparently USCIS has advised that if an individual departs the United States while an application for Advance Parole is pending, even if legitimately so under current regulation or policy, in possession of a valid H-1 or L-1 visa or alternatively, a previously issued Advance Parole Authorization that has not expired, the new application for Advance Parole Authorization will be denied and deemed as abandoned.

Of course, the underlying Application for Adjustment of Status (hereinafter AOS) remains valid, but this certainly constitutes a new and unnecessary inconvenience to travelers.

There are two significant ironies to the assertion of this new policy.2 The first irony is that it is futile, expensive, and serves no enforcement initiative or concern of the Department of Homeland Security.

This policy applies to individuals who already have authorization to depart and return to the United States, either because they have bona fide H-1 visas or L-1 visas or because they are already traveling on a previously issued Advance Parole Authorization.

It is expensive and futile because it puts these travelers in the position of having to re-file new Advance Parole Authorization applications upon return to the United States, often at no cost to the applicant in accordance with current policy relating to the filing of the Advance Parole Authorization when Adjustment of Status applications are pending and the original filing fee has been paid.

The second irony is that this implementation of policy goes contrary to the entire history of the Advance Parole Authorization Program, which has been modified over the years to accommodate the real world needs of applicants for permanent residence, and nothing has changed in terms of the environment in which such applications are filed, that would indicate a need to reverse this trend.

ADVANCE PAROLE AUTHORIZATION - A HISTORY

Advance parole is a travel authorization and is commonly sought by individuals in the United States with pending applications for AOS. Historically, advance parole was an extraordinary request only reserved for unique circumstances. However, over the past 25 years advance parole has gone from the extraordinary to the routine and applicants in several nonimmigrant visa categories have been exempted from the application completely. Moreover, AOS applicants can file advance parole applications without paying an additional filing fee.

Until recently it...