Applying for Advance Parole After Accruing Unlawful Presence

The focus of this article is on applying for advance parole when you have unlawful presence in the United States.

As a threshold matter, anytime you have accrued unlawful presence in the United States, you should consult with an immigration lawyer in your area. As this article discusses, being in the U.S. unlawfully can lead to bars to returning to the United States.

If you have applied for Adjustment of Status (Form I-485), you can apply for advance parole (Form I-131) concurrently. Advance parole allows an adjustment applicant to travel abroad and return to the U.S. while the adjustment application is pending. But if the adjustment applicant has accumulated over 180 days of unlawful presence in the U.S. by being out of status, then applying for this type of relief may not be useful.

Over 180 days of unlawful presence in the U.S. will trigger bars to returning to the U.S. If one is in the U.S. unlawfully for over 180 days and then departs the U.S., she will not be able to return for either 3 or 10 years (or will need a Waiver of Inadmissibility to overcome the bar).

If one applies for advance parole after accumulating 180 days of unlawful presence, the application will most likely be denied. This does not mean that the adjustment of status will be denied, it just means that the applicant will not be able to travel abroad and return to the U.S. during the pendency of the application. However, even if the application is somehow approved for an applicant with over 180 days of unlawful presence, it is important for the applicant to realize that she should not depart the U.S. with that travel document. Rather, she should wait until she receives her Green Card before traveling abroad. USCIS will not forgive periods of unlawful presence accrued prior to the submission of the adjustment application with regard to the 3- or 10-year bar.

For adjustment applicants who have accrued over 180 days of unlawful presence, the most likely outcome will be a denial of the I-131 application. Along with the denial, USCIS will send along a warning notice specifying that a bar to returning to the U.S. will be triggered if the applicant departs the U.S. For this reason, it is best not to apply for advance parole in an application for adjustment of status if the applicant has been in the U.S. unlawfully for over 180 days.

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