From Attorney Murthy
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As some MURTHYBULLETIN and MurthyDotCom readers may be aware, there has been
a recent change to the Port of Entry procedure with respect to individuals
entering on an advance parole while the Application for Adjustment of Status
(Form I-485) is pending. Under the old procedure, such individuals were
issued I-94 cards upon entry that did not contain expiration dates but
rather indicated a stay of "indefinite" duration. Under the new procedure,
such individuals will be paroled in for one year. This means that there is a
particular date notation on the I-94 card. However, as we explain here, this
does not necessarily mean such individuals are disallowed from remaining in
the U.S. beyond the one-year expiration date. Rather, as persons with the
I-485 pending, they are, generally, legally permitted to remain in the U.S.
and await the INS decision on the adjustment of status application.
The advance parole document is issued to an individual who has a pending
I-485 upon filing the proper form. This document grants advance permission
for one's return to the U.S. so that s/he might continue to pursue the
Application for Adjustment of Status to Permanent Resident. We know the
change in procedure will cause concern among many individuals who plan to
travel during the upcoming holiday season. Fortunately, there is favorable
clarification that is in keeping with existing law.
Senior officials at the Immigration Services Division (ISD) at INS
headquarters explained in an October 17, 2002 teleconference, that there is
no unlawful presence created when the advance parole I-94 expires, provided
the I-485 is still pending. That is, the individual is allowed to remain in
the U.S. while the I-485 is pending, even if that period extends beyond the
I-94 expiration date. Such a person will not be regarded as unlawfully
present. Accordingly, there are no penalties or negative consequences for
the individual, as long as the I-485 is still pending decision with the INS.
This interpretation is consistent with INS policy over the years. INS laws
and regulations have always provided that, when one has filed an I-485, that
person is deemed to be in a period of stay authorized by the Attorney
General. The person is in legal status while the I-485 adjustment
application is pending.
Of course, once the I-485 is approved, the individual will become a U.S.
Permanent Resident or "green card holder." If the I-485 is denied, the I-94
expiration date may then take on some relevance, although this point is not
entirely clear. The ISD stated that the Inspections Division of INS handling
issues relevant to Ports of Entry would issue further clarification on the
purpose as well as the implications of these changes.
Quote
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As some MURTHYBULLETIN and MurthyDotCom readers may be aware, there has been
a recent change to the Port of Entry procedure with respect to individuals
entering on an advance parole while the Application for Adjustment of Status
(Form I-485) is pending. Under the old procedure, such individuals were
issued I-94 cards upon entry that did not contain expiration dates but
rather indicated a stay of "indefinite" duration. Under the new procedure,
such individuals will be paroled in for one year. This means that there is a
particular date notation on the I-94 card. However, as we explain here, this
does not necessarily mean such individuals are disallowed from remaining in
the U.S. beyond the one-year expiration date. Rather, as persons with the
I-485 pending, they are, generally, legally permitted to remain in the U.S.
and await the INS decision on the adjustment of status application.
The advance parole document is issued to an individual who has a pending
I-485 upon filing the proper form. This document grants advance permission
for one's return to the U.S. so that s/he might continue to pursue the
Application for Adjustment of Status to Permanent Resident. We know the
change in procedure will cause concern among many individuals who plan to
travel during the upcoming holiday season. Fortunately, there is favorable
clarification that is in keeping with existing law.
Senior officials at the Immigration Services Division (ISD) at INS
headquarters explained in an October 17, 2002 teleconference, that there is
no unlawful presence created when the advance parole I-94 expires, provided
the I-485 is still pending. That is, the individual is allowed to remain in
the U.S. while the I-485 is pending, even if that period extends beyond the
I-94 expiration date. Such a person will not be regarded as unlawfully
present. Accordingly, there are no penalties or negative consequences for
the individual, as long as the I-485 is still pending decision with the INS.
This interpretation is consistent with INS policy over the years. INS laws
and regulations have always provided that, when one has filed an I-485, that
person is deemed to be in a period of stay authorized by the Attorney
General. The person is in legal status while the I-485 adjustment
application is pending.
Of course, once the I-485 is approved, the individual will become a U.S.
Permanent Resident or "green card holder." If the I-485 is denied, the I-94
expiration date may then take on some relevance, although this point is not
entirely clear. The ISD stated that the Inspections Division of INS handling
issues relevant to Ports of Entry would issue further clarification on the
purpose as well as the implications of these changes.