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Another positive change to the immigration laws announced last night is the Secretary of Homeland Security’s instruction that DHS counsel should prepare a legal memorandum forthcoming that departures pursuant to advance parole will not trigger the three and ten year bars.  This memo is to ensure that all departures on advance parole are treated consistently across the country for unlawful presence purposes.

Individuals who have been unlawfully present in the U.S. for more than 180 days who then depart the U.S. are subject to a three year bar on returning.  Individuals with a year or more of unlawful presence face a ten year bar after departure.  In Matter of Arrabally and Yerabelly, 25 I.&N. Dec. 771 (BIA 2012), the Board of Immigration Appeals ruled that individuals who departed on an advance parole granted due to a pending application for adjustment of status have not made a “departure” for purposes of triggering the three or ten year bars.  while this was a welcome decision, there was confusion and disagreement whether this applied to all departures on advance parole or only to those who departed on advance parole issued to applicants for adjustment of status.  For example, DACA recipients can get advance parole and it was unclear whether their departure would subject them to a bar to return due to unlawful presence they may have accrued prior to DACA’s existence.

The new memo is to clarify that any departure from the U.S. under advance parole no matter why that parole was granted would not be considered a departure for purposes of triggering the three and ten year bars.  This means that people with advance parole, perhaps as a result of DACA, or through the new “DAP” program, for parents of U.S. citizens, will be able travel to visit family abroad without having to lose everything they have achieved in the U.S.