INS Corrects Website Error : Issues Statement on Advance Parole
Posted Apr 27, 2001

On November 22, 2000 INS posted an advisory on its website saying that a person who has applied to adjust status or change status in the U.S. needed advance parole to travel abroad. While this statement is undoubtedly true of applicants for adjustment of status (I-485), except those maintaining H1B, H4, L1 or L2 status who could travel on a visa in one of these categories, it should not relate to a person who has applied to change status from one nonimmigrant category to another. The idea that an applicant for change of status would need advance parole was surprising also to an attorney in Hawaii, who wrote to INS asking for clarification. He had even tried obtaining advance parole for a client in this situation, but the INS District Office had refused.

The attorney received a reply from Pearl Chang, Director of the Residence and Status Branch at the INS Office of Adjudications. According to Ms. Chang, the advisory on the INS website contained errors, and her office had not reviewed it before it was posted. There is no INS regulation or policy providing for advance parole when a person files for a change of status to a different nonimmigrant classification. If the person wants to travel while the application or petition is pending, s/he can either return on the old status, if eligible, or can wait abroad until a visa can be issued in the new category. (If it is a petition-based visa, such as an H1B, the petition would have to be approved before the visa in the new category can be issued.)

Ms. Chang also provided an INS memorandum on a separate subject relating to advance parole, namely that the advance parole document does not protect a person from the 3- or 10-year bar when the person has been out of status for an extended period of time. Indeed, as we have noted in prior issues of the MurthyBulletin, an I-485 applicant who may be subject to the bars should not apply for advance parole and should not travel. In case the person does obtain advance parole, the recent advance parole document (since early 2000) itself contains a prominent warning about the bars, so that people who may be adversely affected will seek advice before making travel plans. Prior advance paroles did not contain such a warning and a person filing the I-485 and I-131 without an attorney would have been seriously harmed and been subject to the 3-year or 10-year bars.