On April 17, 2012, the Board of Immigration Appeals (BIA), in Matter of Arrabally and Yerrabelly, ruled that one travelling on advance parole may not be barred from returning to the U.S. after a temporary absence. This is important because parole is permission to travel while an Application for Permanent Residence (I-485) is pending; departure without parole causes the abandonment of the I-485, making it impossible to return to the U.S.
This is a welcomed ruling because for years the USCIS engaged in a bait and switch ploy. In other words, it would grant parole, the applicant traveled, and was readmitted to the U.S. to continue the I-485 application. However, at the later I-485 interview, the applicant was informed by the USCIS that the I-485 was being denied because by departing the U.S., they became subject to inadmissibility–pursuant to section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act (INA). In other words, the USCIS gave them permission to travel, readmitted them upon return, but then used the departure to punish them under another section of law.
The BIA has now ruled that as a consequence of parole, the travel is not a “departure” and therefore does not trigger the punishment of inadmissibility under 212(a)(9)(B)(i)(II), This is a just and welcomed new interpretation. Nevertheless, I would still advise my clients to wait for the parole decision before leaving the U.S.