I-131 Travel Authorization - Strange sounding rules

[Pitaya 2,577]

OP: It helps everyone that uses the forum.

[Marco&Bettina 502]

KDC

It seems there is still some confusion about this, even for those who have gotten AP and those who have traveled with AP.

For both DACA and normal AOS people, there are clearly stated restrictive reasons that allow for travel.

Now, several here doing AOS have stated that there is not a need to list reasons for asking for AP and that they got the AP.

But that begs the question, will they be allowed back into USA when they travel on such AP.

If you read the conditions on any visa or travel document, it always cautions that Border Patrol officers can deny entry to anyone, even those who have good documents, etc.

So yes, I understand that several here have traveled on AP and gotten back into USA. But that doesn't mean than others will be similarly successful.

Perhaps an analogy can be useful:

A person can obtain a drivers license. But that drivers license can only be used to drive under the laws and rules that exist.

Similarly, a person can obtain an AP card. But that card is only good for travel under the rules which clearly (in the Instructions for I-131) allow for travel for "urgent humanitarian reasons", or in furtherance of a "significant public benefit", which may include a personal or family emergency or bona fide business reasons".

Note the above is NOT for DACA, but is similar.

DACA says that travel can be for 1) Educational, 2) Ordered to travel by your Employer,

3) Humanitarian - you need medical treatment outside USA or a family member's serious illness or death.

So getting an AP card is not the same as being able to use it for any travel purpose.

Your reasoning sounds logical.

[aaron2020 11,651]

From Nolo - a legal publisher.

http://www.nolo.com/legal-encyclopedia/free-books/fiance-marriage-visa-book/chapter14-24.html

a. Qualifying for Advance Parole

Advance Parole used to be granted only for emergencies. Fortunately, USCIS has become far more lenient, recognizing the hardship caused by its own processing delays. Family visits or even a vacation with your spouse are usually considered an acceptable reason to leave the United States.

[Leo7777 243]

Aaron, thanks for posting that.

In the same Nolo, it continues as:

b. Be Cautious About Leaving

The Advance Parole document is your ticket back into the United States, but it is not a guaranteed ticket. Its function is to keep your adjustment of status application alive while youre gonebut it wont protect you from being found inadmissible. So if you have any doubts about your admissibility to the United States, dont leave at all.

Dont be alarmed, however, if upon returning to the United States, you are pulled into a separate line. This is called secondary inspection, and it is the normal procedure for anyone returning with an Advance Parole document.

CAUTION

Applicants who have spent time unlawfully in the United States should speak to a lawyers before leaving. If youve spent more than 180 continuous days unlawfully in the United States, you could be barred from returning. Getting permission in the form of an Advance Parole document might, under a 2012 Board of Immigration Appeals, overcome the problem -- but this is a changing area of the law, so you should get the latest advice from an attorney.

= = = = = = = = =

This raises some new issues. We have all been told here dozens of times that marriage to USC will overcome a lot of violations such as overstaying tourist visas, etc.

But the above seems to indicate that such overstays could come back to bite you . . . if you leave USA on an AP card.

[Teddy B 17,252]

Aaron, thanks for posting that.

In the same Nolo, it continues as:

b. Be Cautious About Leaving

The Advance Parole document is your ticket back into the United States, but it is not a guaranteed ticket. Its function is to keep your adjustment of status application alive while youre gonebut it wont protect you from being found inadmissible. So if you have any doubts about your admissibility to the United States, dont leave at all.

Dont be alarmed, however, if upon returning to the United States, you are pulled into a separate line. This is called secondary inspection, and it is the normal procedure for anyone returning with an Advance Parole document.

CAUTION

Applicants who have spent time unlawfully in the United States should speak to a lawyers before leaving. If youve spent more than 180 continuous days unlawfully in the United States, you could be barred from returning. Getting permission in the form of an Advance Parole document might, under a 2012 Board of Immigration Appeals, overcome the problem -- but this is a changing area of the law, so you should get the latest advice from an attorney.

= = = = = = = = =

This raises some new issues. We have all been told here dozens of times that marriage to USC will overcome a lot of violations such as overstaying tourist visas, etc.

But the above seems to indicate that such overstays could come back to bite you . . . if you leave USA on an AP card.

This has long been the case, nothing new here. I think you are trying to muddy up waters that are really pretty clear and have been for some time. AP is never a guarantee for re-entry to the states and it should always be used with caution.

[aaron2020 11,651]

This has long been the case, nothing new here. I think you are trying to muddy up waters that are really pretty clear and have been for some time. AP is never a guarantee for re-entry to the states and it should always be used with caution.

Nothing except US citizenship or a green card guarantee admission into the US.

Any foreigner even with a valid visa is not guarantee entry.

[Teddy B 17,252]

Nothing except US citizenship or a green card guarantee admission into the US.

Any foreigner even with a valid visa is not guarantee entry.

My personal opinion on using AP is that unless it's a dire emergency, don't take the chance.

[Boiler 45,476]

I used it for holiday.

I was aware that when you re enter you are paroled in rather than admitted which puts you in a weaker legal position.

Most people do not care, some might. Some might have reason.

[KayDeeCee 4,893]

Only US citizens are guaranteed entry to the US. You could have been refused entry using your visa. Someone could be refused entry that holds a green card. If you want to be guaranteed entry to the US when traveling abroad, then wait until you are a US citizen. There is no other way to get that guarantee. If someone wants to travel while waiting for their green card, then they can use AP to do so. They should do so knowing there is no guarantee of being paroled back into the US, but they most likely will be successful without much hassle.

The CBP lists info about AP as well. It states that you can obtain AP to re-enter if you have filed for AOS and are still awaiting approval, and/or if you need to travel for for an emergency or some other bona fide reason. You can use AP if granted because you are an AOS applicant, or if you need it for some specific reason. It does not have to be both. : https://www.cbp.gov/travel/us-citizens/advance-parole

Aliens in the United States should, prior to departure, obtain Advance Parole in order to re-enter the United States after travel abroad if they have:

• Filed an application for adjustment of status but have not received a decision from the U.S. Citizenship and Immigration Services;
• Hold refugee or asylee status and intend to depart temporarily to apply for a U.S. immigrant visa in Canada; and/or
• An emergent personal or bona fide reason to travel temporarily abroad.

Also, being barred from entry when you have more than 180 days of overstay no longer applies to those that have received AP based on being an AOS applicant.

There was a BIA ruling a few years back, Matter of Arrabally and Yerrabelly.

FAM notes now state this > http://www.state.gov/documents/organization/87120.pdf

9 FAM 40.92 N2.2 INA 212(a)(9)(B)(i)(II) Departure At Any Time

The 10-year bar under INA 212(a)(9)(B)(i)(II) does not contain the same language as the three-year bar under INA 212(a)(9)(i)(I) relating to the alien having departed voluntarily prior to commencement of removal proceedings. Thus, an alien who departs the United States after having been unlawfully present for a period of one year or more subsequent to April 1, 1997, is barred from returning to the United States for 10 years, whether the departure was before, during, or after removal proceedings and whether the alien departed on his or her own initiative or under removal order. The one exception to this rule (see also INA 212(a((9)(B)(v)) is that an alien cannot become inadmissible under INA 212(a)(9)(B)(i)(II) solely by virtue of a departure and return to the United States undertaken pursuant to a valid grant of advance parole based on the alien’s pending application for adjustment of status. Note that this does not preclude a trip under a grant of advance parole from being considered a “departure” for any other purposes under the INA, nor does it call into question the applicability of any other inadmissibility ground. On the contrary, it is well settled that an alien who leaves the United States and returns under a grant of advance parole is subject to those grounds of inadmissibility that may apply, rather than grounds of deportability, once parole is terminated. (See Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012.)

Edited December 23, 2015 by KayDeeCee

[Leo7777 243]

KDC, thanks a big bunch for this last posting.

Good to finally see some authoritative wording and references that shed a lot of light on this situation.

I do a lot of Googling, but can never come up with really good stuff like you found.

So I congratulate you on your abilities; and well as thanking you for your help.

Leo

[KayDeeCee 4,893]

You are welcome. Glad it helped.

[gaia12 9]

Agree with Leo, thanks KDC.

[Hypnos 6,576]

Hopefully this now puts the AP misinformation floating around to rest.

If nothing else I hope people concerned with this issue read all of KDC's post above, as it concisely explains the relevant law.

And as stated, provided someone has a pending I-485 then USCIS and CBP are quite lax on both obtaining and using AP, to where you can shoehorn "significant public benefit" into basically anything you want, provided the underlying applications remain valid. Re-entry is never guaranteed though, not until you become a US citizen.

Edited January 28, 2015 by Hypnos

[FROWNcat 24]

Sounds like my GC won't be here before I have to leave to renew my passport back home and see my family after a whole year. I can't help but feel paranoid about traveling with my AP/EAD only. I might take extra papers with me (marriage certificate, USCIS papers etc.) to make sure I did everything legally but if they'll block me it's going to be so hard on the both of us. This whole immigration journey hasn't been easy.

[TBoneTX 45,267]

I might take extra papers with me (marriage certificate, USCIS papers etc.)

Good thinking. This (at least the marriage certificate) can be an invaluable way of convincing the CBP agent of your legitimate status.

Edited February 3, 2015 by TBoneTX