On Friday, I received a difficult phone call many immigration lawyers face on occasion. While it is fortunately a rare occasion, demographics and statistics assure us that these calls will continue. My client’s derivative adjustment application has been pending since 2007, she is working based upon an EAD, and her father is dying in India. The family expects his death will come any moment, certainly within a couple of days. She didn’t have an advance parole.
My first step was to call the local Field Office Director (FOD) and I immediately found an individual at USCIS with both the compassion to understand the need for the advance parole, and the commitment to help. The FOD suggested I file the I-131 online, and get her the receipt as soon as possible. Within an hour, we had electronically filed the application, including the supporting documentation from the doctor, and the FOD spent the rest of Friday afternoon seeking the technical ability and legal authority to issue the travel document. Unfortunately, she wasn’t able to issue the document before the weekend notwithstanding what I am certain was a dedicated effort. After a very long weekend for my client, the FOD returned to work on Monday morning to continue the effort. Fortunately, the advance parole document was issued first thing Monday and my client was able to travel immediately. Before that could happen, however, our office spent an entire day working with her, and the FOD spent most of the same day working on the effort, as did many other local office and service center staff, and other personnel within USCIS. A great deal of effort by all parties was required, during which my client spent a few very difficult days with a lot of stress and anxiety concerning her ability to be with family at the time of her father’s death.
This experience led me to think about the rule that requires the issuance of advance parole, and more specifically, the reason that the document must be issued before the applicant departs from the United States. The regulation imposes the rule that departure before the document is issued constitutes an abandonment of the adjustment application. 8 CFR §245.23(j). There is no statute that mandates this rule. The regulation was written when adjustment applications took 30 to 60 days to adjudicate, and the need to travel during this brief interim period was rare. The predominant theory suggested that an individual applying for adjustment wanted to live permanently in the U.S., had just submitted an application for this benefit, and absent extraordinary circumstances, there should be no immediate need to travel. By 1992, the processing times were slightly longer, and Associate Commissioner James Puleo issued a memorandum with instructions to grant advance parole upon request unless the need to travel was contrary to law or public policy. He explained this new standard as follows:
This instruction was clearly meant to accommodate the legitimate travel of persons inconvenienced by visa numbers becoming unavailable after they filed adjustment applications. Construction of the term ‘bona fide business or personal reason’ to require a showing of emergent or extreme need to travel is inappropriate. Accordingly, travel for a bona fide business or personal reason should be considered as travel for any reason which is not contrary to law or public policy.
Adjudicator’s Field Manual, Chap. 54.3(b), quoting from the 1992 Puleo Memo (emphasis in the original).
In July 2007, at the same time 325,000 adjustment applications were filed, many of which are still pending today, USCIS published a new fee schedule that became effective on July 30, 2007. This notice increased the filing fee for adjustment applications to $985 (plus $85 for biometrics) but included applications for employment authorization and advance parole for every adjustment applicant, irrespective of the need to travel. From 1992 to 2007, we moved from a standard that required “emergent or humanitarian considerations” to a new standard that makes the advance parole application a routine part of every adjustment application.
The only reason advance parole is required before travel is because the regulation imposes this requirement. 8 CFR §245.23(j). But if this is not required by the statute, only by the regulation, what is the policy imperative behind this rule? I suggest that today, there is no good reason for this rule. The nature of the adjustment application and the routine advance parole applications that are now a part of every single application, suggest that an applicant’s travel before the document is issued no longer justifies the abandonment of the underlying adjustment application. By eliminating this rule, clients with an emergent need can travel, and make arrangements to have the approved document sent to them overseas once it has been approved. This would eliminate the stress, time, money, and attention of the applicants and USCIS personnel to expedite a process that is required only by an obsolete rule.
Written by Rob Cohen, Vice Chair, AILA’s USCIS Liaison Committee