USCIS Clarifies Advance Parole Policy When Renewal Application Is Pending
This article was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Laura Danielson is an active member.
The U.S. Citizenship and Immigration Services (USCIS) Ombudsman recently reported that the agency has resolved a discrepancy in the application of policy concerning persons with advance parole who recently filed renewal applications and then left the United States. In some cases, their renewal applications were denied upon their return even when their original advance parole was still valid. The Service Center Operations Directorate was issuing denials but the Field Operations Directorate still approved renewal applications where the applicants had traveled abroad as long as they returned to the United States with previously approved and still valid advance parole documents, the Ombudsman explained. USCIS has now clarified its policy.
The Ombudsman noted that USCIS adjudicators are now consistently using information from the Arrival and Departure Information System, which identifies those who file advance parole applications and then leave the United States. That was triggering denials under USCIS regulations, stating that "if you leave the U.S. during the pendency of the application you will be deemed to have abandoned it."
In practice, there were inconsistencies in the way USCIS was enforcing those instructions, as noted above. Furthermore, the Ombudsman noted, "there were practical implications to the new practice of denying these renewals for advance parole." In many cases, applicants re-filed their parole applications, in many cases without a fee, resulting in more work for USCIS. In addition, if an individual did not receive a decision on the re-filed advance parole application before a planned trip, the applicant often would appear at a local USCIS field office to apply for emergency advance parole. "In the end, therefore, USCIS was expending substantial resources to deny and re-adjudicate parole applications for: (1) individuals who it had already determined were eligible for an original advance parole document; and (2) were in fact traveling with authorization under the original parole document that was still valid upon return."
The Ombudsman said it met numerous times with USCIS over the course of a year to discuss these issues and that the Ombudsman "made the case that the denials, while authorized by law, did not make operational sense and did not in reality further the spirit of the policy encapsulated by the instructions." The Ombudsman said that USCIS Director Francis Cissna reversed course in November 2018. The USCIS statement "Emergency Travel" on its website now states, "At times, an individual may have an approved advance parole document while a second one is pending. Individuals may travel on the approved [advance] parole document, provided the document is valid for the entire duration of the time abroad. The pending Form I-131 will not be considered abandoned in this situation."
The Alliance of Business Immigration Lawyers (ABIL) noted that although USCIS has announced it will no longer deny pending advance parole applications if an individual travels on an unexpired advance parole while the new parole application is pending, this does not address what happens to those who travel on an H or L visa while an advance parole application is pending. Based on the wording of the USCIS announcement, it appears that advance parole applications will still be denied if an individual travels on an H or L visa. ABIL noted that anecdotal evidence, although limited at this time, indicates that this is the current practice at USCIS. Attempts to obtain clarification from USCIS have not yet received a response.
View the USCIS's "Emergency Travel" statement. The Ombudsman disseminated this news via email on February 8, 2019.