Often times, we are asked whether it is possible to obtain U.S. Lawful Permanent Residence (“#greencard”) for someone who is married to a U.S. citizen, but entered the United States without inspection, also known as “EWI” and is in the United States in #Temporary Protective Status, #TPS.
A possible path for a person in those circumstances is using an #Advance Parole to visit family members in the home country, and at the same time curing the entry without inspection allowing for a subsequent Adjustment of Status without requiring a waiver.
To illustrate this point, let’s look at the following scenario: Jorge is an immigrant from Honduras. He entered the United States in 1996, crossing the border from Mexico into Texas. He was not detained at the border. When the United States designated Honduras for TPS on January, 1999, Jorge applied for and was granted TPS. He remained in the United States ever since. Subsequently, Jorge met Mary, a U.S. citizen, fell in love and got married. Jorge wanted to become a #U.S. Lawful Permanent Resident through his wife, Mary.
In the past, they dis not have much choice. #Adjustment of Status essentially means that a person gets his/her green card in the United States, frequently after an interview at the local U.S. Citizenship & Immigration Service (“USCIS“) office. Yet, the law requires that an applicant be “admitted” or “paroled” into the United States in order to be able to qualify for Adjustment of Status. So for Jorge, this meant that he did not qualify! He entered the United States without inspection – crossing the border – so he was never “admitted” or “paroled.”
A possible option is for Jorge to leave the country for a brief period of time, to return using Advance Parole curing the entry without inspection to later apply for Adjustment of Status in the United States. In the past, if Jorge and Mary wanted to try this option, they were going to fail –once Jorge had departed the United States, he would have triggered the Unlawful Presence bar. If an unauthorized immigrant is in the United States for more than 6 months but less than a year, and he/she departs, he/she is barred from returning for 3 years. If he/she is here a year or more without permission, and he/she departs, he/she is barred from returning for 10 years.
Yet, in April 2012, things changed! The U.S. Board of Immigration Appeals (the “BIA”) issued an important decision, Matter of Arrabally and Yerrabelly. There, the BIA set out that leaving the United States on Advance Parole was not really a “departure” for the purposes of the Unlawful Presence bar, and therefore Unlawful Presence was not triggered. This was a 180 degree change, from an immigration law perspective.
Therefore, after April 2012, Jorge could re-enter using Advance Parole, which would cure his unlawful entry, and seek to adjust status without a waiver. He would adjust his status just like anyone else who was lawfully admitted.
Thus, today Adjustment of Status using Advance Parole is a proper means of obtaining Lawful Permanent Residence. For the Adjustment/Advance Parole process, no hardship of any kind is necessary. Once entry is cured, since there is no longer a trigger for Unlawful Presence, the immigrant adjusts his/her status as any other immigrant who entered lawfully. Immigrants who have a previous removal order or have a criminal record would likely not be good candidates for Advance Parole adjustment.
This is a remarkable change in the way the law operates. So, if you have TPS and are married to a US Citizen, or have a US Citizen child over the age of 21, you are now eligible for permanent residence without processing in your home country and without having to file a waiver! You simply need to obtain the advance parole, briefly travel, re-enter, and then file for adjustment.
We have to highlight that every person’s case is different. This article does not constitute legal advice – for legal advice you must consult with us, or an attorney who is experienced and knowledgeable in immigration law. In addition, immigration law guidelines and regulations are constantly changing. Adjustment of Status using Advance Parole to cure entry may not be accepted in the future. If you are considering adjusting status, please contact our office at 954-843-3494 and set up a consultation so that we can analyze your situation. We look forward to speaking with you!
A possible path for a person in those circumstances is using an #Advance Parole to visit family members in the home country, and at the same time curing the entry without inspection allowing for a subsequent Adjustment of Status without requiring a waiver.
To illustrate this point, let’s look at the following scenario: Jorge is an immigrant from Honduras. He entered the United States in 1996, crossing the border from Mexico into Texas. He was not detained at the border. When the United States designated Honduras for TPS on January, 1999, Jorge applied for and was granted TPS. He remained in the United States ever since. Subsequently, Jorge met Mary, a U.S. citizen, fell in love and got married. Jorge wanted to become a #U.S. Lawful Permanent Resident through his wife, Mary.
In the past, they dis not have much choice. #Adjustment of Status essentially means that a person gets his/her green card in the United States, frequently after an interview at the local U.S. Citizenship & Immigration Service (“USCIS“) office. Yet, the law requires that an applicant be “admitted” or “paroled” into the United States in order to be able to qualify for Adjustment of Status. So for Jorge, this meant that he did not qualify! He entered the United States without inspection – crossing the border – so he was never “admitted” or “paroled.”
A possible option is for Jorge to leave the country for a brief period of time, to return using Advance Parole curing the entry without inspection to later apply for Adjustment of Status in the United States. In the past, if Jorge and Mary wanted to try this option, they were going to fail –once Jorge had departed the United States, he would have triggered the Unlawful Presence bar. If an unauthorized immigrant is in the United States for more than 6 months but less than a year, and he/she departs, he/she is barred from returning for 3 years. If he/she is here a year or more without permission, and he/she departs, he/she is barred from returning for 10 years.
Yet, in April 2012, things changed! The U.S. Board of Immigration Appeals (the “BIA”) issued an important decision, Matter of Arrabally and Yerrabelly. There, the BIA set out that leaving the United States on Advance Parole was not really a “departure” for the purposes of the Unlawful Presence bar, and therefore Unlawful Presence was not triggered. This was a 180 degree change, from an immigration law perspective.
Therefore, after April 2012, Jorge could re-enter using Advance Parole, which would cure his unlawful entry, and seek to adjust status without a waiver. He would adjust his status just like anyone else who was lawfully admitted.
Thus, today Adjustment of Status using Advance Parole is a proper means of obtaining Lawful Permanent Residence. For the Adjustment/Advance Parole process, no hardship of any kind is necessary. Once entry is cured, since there is no longer a trigger for Unlawful Presence, the immigrant adjusts his/her status as any other immigrant who entered lawfully. Immigrants who have a previous removal order or have a criminal record would likely not be good candidates for Advance Parole adjustment.
This is a remarkable change in the way the law operates. So, if you have TPS and are married to a US Citizen, or have a US Citizen child over the age of 21, you are now eligible for permanent residence without processing in your home country and without having to file a waiver! You simply need to obtain the advance parole, briefly travel, re-enter, and then file for adjustment.
We have to highlight that every person’s case is different. This article does not constitute legal advice – for legal advice you must consult with us, or an attorney who is experienced and knowledgeable in immigration law. In addition, immigration law guidelines and regulations are constantly changing. Adjustment of Status using Advance Parole to cure entry may not be accepted in the future. If you are considering adjusting status, please contact our office at 954-843-3494 and set up a consultation so that we can analyze your situation. We look forward to speaking with you!
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