Emergency Travel While Adjustment Of Status Is Pending
Author: Green Card Attorney Alena Shautsova
It has always been the case that one who applied for a permanent resident status while in the U.S. cannot travel outside the U.S. without a special permission if he/she does not wish to forego his/her application. For a while it was also the case that one who gets this special permission, could not return back to the U.S. without a waiver due to unlawful presence bar.
After the Board of Immigration Appeals decided Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), AOS (adjustment of status) applicants may travel overseas using an advance parole document, even if they accumulated unlawful presence time in the U.S. and safely come back. However, what to do if the person filed for the permission to travel, and while waiting for it he/she has an urgent need to go overseas?
The practice varies, but at least in New York, such an applicant has a chance of receiving an emergency advance parole. For this, an applicant must personally come to the USCIS field office and present evidence to support the need to travel, evidence of the relationship, if applicable, a Form I-131, and the proper form fee. Also, a requester has to meet the expedite criteria under the USCIS guidelines.
Another important thing to remember: if the applicant had a prior order of removal, criminal convictions and other "immigration issues" that may cause him/her inadmissible (apart from unlawful presence), such a person should not travel overseas even using an advance parole. It is so because Matter of Arabally applies only to the issue of inadmissibility under INA 212(a)(9)(B) (unlawful presence). It does not "waive" other grounds for inadmissibility.