San Diego Immigration Lawyer: Update on Advance Parole Application for DACA Recipients

On August 28, 2013, an application advisory on Advance Parole for Deferred Action for Childhood Arrivals (DACA) Recipients was published by American Immigration Council Legal Action Center.

Based on the advisory, this article summarizes advance parole eligibility, application procedures and documentation requirements for DACA recipients.

I. Advance Parole Eligibility
Prior to applying for advance parole, an individual must apply for and receive a DACA approval. An individual is disqualified from DACA if he or she departs the United States at any time after August 15, 2012 unless he or she is first granted both DACA and advance parole. In order to receive advance parole, a DACA recipient generally must show that he or she is traveling abroad for humanitarian, employment, or educational purposes.

Humanitarian purposes relate to “travel for emergent, compelling, or sympathetic circumstances.” This category includes obtaining medical assistance, attending a funeral service for a family member, visiting a sick relative, or other urgent family-related purposes. Educational purposes include study abroad programs and academic research. Employment purposes include overseas assignments or client meetings, interviews, conferences, trainings in other countries, and travel needed to pursue a job with a foreign employer in the United States. USCIS construes the humanitarian, educational, and employment categories broadly. However, traveling abroad for vacation is not a valid purpose for advance parole.

II. Applying for Advance Parole
To apply for advance parole, a DACA recipient must submit Form I-131 to USCIS. The advance parole applicant must submit proof of DACA status – either a copy of the USCIS Notice of Action (Form I-797) showing a DACA approval or a copy of an approval order, notice or letter from U.S. Immigration and Customs Enforcement (ICE).

The filing fee is $360. In Part 4 of Form I-131, the DACA recipient must explain the purpose of the trip and the countries the applicant plans to visit. In addition, the requester must submit evidence of the purpose of the trip, the intended date(s) of travel, and the duration of the trip(s).

DACA recipients must provide as much evidence as possible to explain the purpose of intended travel abroad.

For a trip involving a humanitarian purpose, proper evidence includes but is not limited to the following:
• A letter from a medical professional explaining the reason for the need to travel abroad to obtain medical treatment;
• A letter from a hospital or treating medical professional explaining the relative’s ill condition; and/or
• A death certificate for a deceased relative.

For a trip involving an educational purpose, evidence includes but is not limited to the following:
• A letter from an educational institution explaining the purpose of travel abroad; or
• A document showing enrollment in a program or class and documents showing the applicant is required to travel for a program or class or will benefit from such travel.

For a trip involving an employment purpose, appropriate evidence includes but is not limited to the following:
• A letter from an employer explaining the need to travel abroad; and/or
• A document showing an employment need, such as a conference or training program, and showing the applicant’s participation.

A single Form I-131 may be used to request that the DACA recipient be allowed to leave and re-enter the United States multiple times. However, the recipient must show that each trip is intended to serve a humanitarian, employment, or educational purpose and explain why the
DACA recipient needs to travel multiple times.

Generally, USCIS does not grant expedited requests for advance parole for DACA recipients. However, in a dire emergency, USCIS is willing to consider an expedited request at a local USCIS office.

A DACA recipient who is granted advance parole receives an Authorization for Parole of an Alien into the United States (I-512L). The I-512L authorizes an immigration inspector at a port-of-entry to parole the individual into the United States. The document contains a date by which the individual must present the document to an inspector at a port-of-entry to seek parole.

If the expected dates of travel are relatively soon after the date the advance parole application is submitted and approved, the individual needs to be ready to travel promptly after receiving the authorization document. The travel itinerary needs to be clear and well-organized to ensure that the individual returns to the United States within the time allotted in the document.

The advance parole authorization document makes clear that advance parole does not guarantee entry into the United States. You might also subject to inspection by an immigration inspector at the time of seeking parole into the United States.

III. Other issues to consider before traveling abroad
1. Removal Order
If the DACA recipient has an unexecuted deportation or removal order and were to depart the United States on advance parole, he or she likely would be found to have executed the deportation/removal order and would not be permitted to re-enter the United States for a given period of time.

To avoid this, you can submit a motion to reopen removal proceedings with the Immigration Court or the BIA. Once removal proceedings are reopened, the removal order no longer exists. You then can move to administratively close or terminate the reopened proceedings. If either is granted, the DACA recipient can travel on advance parole without risking the consequences of an executed removal order.

2. Unlawful Presence Bars
DACA recipients who applied for DACA after turning 18 as well as DACA recipients who departed the United States and reentered or attempted to reenter the United States without being admitted, including those who are under the age of 18, will have likely accrued unlawful presence prior to obtaining DACA.

Although there has been no formal written guidance on this issue yet, it appears likely the Immigration will uphold its prior case decision that travel on advance parole does not constitute a “departure” for purposes of the 10-year-bar for unlawful presence. Indeed, some DACA recipients have received advance parole authorizations (Form I-512L) explicitly stating that traveling abroad under advance parole is not a departure.

Advance parole may make some DACA recipients pursuing lawful permanent residency through immigrant visa petitions eligible for adjustment of status. If a DACA recipient travels abroad and returns under a grant of advance parole, then he or she is “paroled” into the United States and may qualify for adjustment of status.

Finally, it is important to note that the eligibility for adjustment of status will most likely only apply to those DACA recipients who qualify to apply as “immediate relatives”, i.e. the spouse or child of a U.S. citizen or the parent of an adult U.S. citizen. DACA recipients waiting to immigrate in a preference category who have previously worked without authorization or been in the U.S. without lawful status are ineligible to adjust status.

But for those DACA recipients who are married to a U.S citizen, or qualify as children of U.S. citizens, travel on advance parole may have the dual benefits of eliminating exposure to the unlawful presence ground of inadmissibility and creating eligibility to adjust status in the United States.