A recent immigration decision has changed the risks of traveling outside the United States with Advance Parole.

For many years, people with approved Advance Parole generally could travel without that trip triggering the three- or ten-year unlawful-presence bars. That rule has now changed.

Because of this change, some people who already have an approved Advance Parole document should not use it without first considering whether they have unlawful presence.

What Is Unlawful Presence?

“Unlawful presence” generally means time spent in the United States without lawful immigration authorization.

For example, unlawful presence may accumulate after a person:

• enters the United States without inspection;
• stays after an authorized period of stay expires; or
• remains in the United States without another form of lawful protection.

There are important exceptions, so simply being “out of status” does not always mean that a person is accumulating unlawful presence.

The amount of unlawful presence is important:

• More than 180 days but less than one year: leaving the United States can trigger a three-year bar.
• One year or more: leaving can trigger a ten-year bar.

What Changed?

The Board of Immigration Appeals recently changed its interpretation of travel with Advance Parole.

Under the new rule, leaving the United States with Advance Parole can count as a departure for purposes of the unlawful-presence bars.

That means someone who has accumulated more than six months of unlawful presence could leave the United States with a valid Advance Parole document and still create a serious immigration problem by departing.

Importantly, the Advance Parole document itself already contains a warning that parole is not admission into the United States, that the traveler will still be treated as an applicant for admission, and that parole into the United States is not guaranteed. USCIS also warns that the person remains subject to immigration inspection and that DHS can deny parole.

Family-Based Adjustment of Status Cases

If you have a family-based adjustment-of-status case and you have accumulated more than six months of unlawful presence, our current advice is:

Do not use Advance Parole to travel outside the United States.

This is true even if USCIS has already approved your Advance Parole document.

If you are not sure whether you have unlawful presence, do not assume that travel is safe.

T Nonimmigrants Are Different

T nonimmigrants have an important exception in the immigration laws.

The unlawful-presence bars do not apply when the person can show that the severe form of trafficking was at least one central reason for the person's unlawful presence in the United States.

Because of that exception, the new Advance Parole rule may not affect many T nonimmigrants in the same way it affects ordinary family-based adjustment applicants.

However, we do not yet know how Customs and Border Protection will handle T nonimmigrants returning to the United States with Advance Parole.

Several things could happen.

A CBP officer may not immediately understand how the unlawful-presence exception applies to T nonimmigrants and may send the traveler to secondary inspection.

An officer may ask questions about the person's trafficking history and immigration history to determine whether the trafficking was at least one central reason for the unlawful presence.

It is also possible that CBP will treat T nonimmigrants with Advance Parole categorically as eligible to return without any unusual problem.

At this point, we simply do not know.

Our Current Advice for T Nonimmigrants

For now, our advice is:

Do not travel internationally unless the trip is truly necessary.

If you are not planning to travel soon, there is no reason to call the office or make an appointment about this issue right now.

If you believe international travel is essential and you plan to travel soon, please make an appointment with the attorney before leaving the United States so that we can review your individual case.

We expect to learn more as CBP begins applying the new rule in actual cases.

If it becomes clear that this level of caution is unnecessary for T nonimmigrants, we will publish another update.

This post provides general information and is not legal advice. Whether someone has accumulated unlawful presence, whether an exception applies, and whether international travel is safe depends on the person's individual immigration history.