Website Q & A - September 20, 2007

Taking Advance Parole When Filing Adjustment of Status Under Section 245(i), Its Dangers and A Possible Option

Dear Mr. Lee:

I am a specialty cook with labor certification priority date of March 2001, I-140 approval in May 2005 and I-485 with 245(i) fine pending with the U.S.C.I.S. since January 2006. In August 2006, I had an interview in New York City but did not pass because my U.S.C.I.S. decision a week later said that I was barred from immigrating because I took advance parole and came back to the U.S. after having been illegal for one year or more. My lawyer filed a motion to reopen for me in September 2006, but I wonder what I can do now. My wife is also filing with me and our one child is a U.S. citizen. I have a brother and sister who are permanent residents, but my parents remain in the homeland .

Dear reader:

Persons who leave the United States on advance parole must take seriously the warnings on the parole document that you may be barred if you have been illegal in the States. Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), most persons who are illegal for 180 days or one year after April 1, 1997, are barred from reentry for three or 10 years respectively. A waiver can be submitted, but requires that the applicant show that extreme hardship would occur to a U.S. citizen or permanent resident spouse or parent because of the departure. Such would not appear to fit your situation unless your spouse found an independent way to immigrate or your parents immigrated to the States. A waiver is not available through the U.S. citizen child. I do note that there is a 10th Circuit case (the circuit covers the states of Wyoming, Utah, Colorado, Kansas, Oklahoma and New Mexico) which holds that an applicant who is entitled to the benefits of section 245(i) remains eligible to adjust status even after having left and reentered the U.S. following more than 1 year illegal stay in the country. In your case, there may be the possibility of your taking advantage of such a ruling if you move to that court's jurisdiction and obtain a same or similar job offer. Under the portability rules of U.S.C.I.S., an individual is able to port his/her I-140 to another employer if the I-140 petition has been approved and the I-485 has been pending for 180 days so long as the new job is in the same or similar occupation. However, there is also the possibility that such a move as described above will not be accepted as you would be moving into the jurisdiction after your denial and your attempted portability would also be after a denial. Such factors might significantly weaken your case.


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The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.