In a recent case, the Board of Immigration Appeals opened up an entire new area for individuals who have until now found themselves ineligible to obtain permanent residence without leaving the United States, or going through a complicated and unpredictable waiver process.
In Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), the Board of Immigration ruled that an individual who came into the US illegally but who is now on an adjustment of status applicant, who obtains a travel documents (advance parole) through USCIS and then leaves the US and reenters on that Advance parole, is eligible to adjust status IN the US (with an available immigrant visa), and is NOT subject to the 10 year bar waiver typically associated with his departure after having been illegally in the US for longer than 1 year. This is an AMAZING development and unexpected good news for several hundred thousand people. TPS status holders are eligible for the same type of advance parole document.
What does this mean in practical terms? This is best understood by example:
- Maria is a Honduran national (or any other current TPS holder) who came into the United States without a visa;
- Subsequently, Maria becomes eligible for AND obtains TPS through the normal USCIS process;
- Maria decides to travel to her home country either for family illness or because of long family separation. She files for and properly obtains from USCIS an “advance parole” or a travel document allowing her to leave and reenter the US to resume her TPS;
- Maria leaves the US and timely returns on the Advance Parole;
- Maria is married to a US Citizen, has a US Citizen child older than 21, or is the beneficiary of an immediately available immigrant visa through other family or through an employer (and has no unlawful employment–their are exceptions);
- Maria can file an adjustment of status in the US without having to pay a fine, and without having to file for an unlawful presence waiver, because she now has both lawful status AND a lawful entry!
Is this really true for TPS holders that would just face an unlawful presence bar?
The unlawful presnece bar ONLY applies if you leave the country and reenter without permission, after 1 year of unlawful presence.
Does this Covers Also a DACA Holder ?
Only if the DACA holder was under 18 when the DACA was approved.
To Mr. Kuck
I entered legally, overstay on a visa 4years, then got TPS for 9years, not married, have a US citizen child of 7years. Now have a visa# after a sister file a petition 14years ago for me, what is my option?
You should make an appointment with an experienced lawyer to see if you have any options.