By: Joseph G. Cella, Esq.
March 27, 2015
As a general rule with certain exceptions, an alien who entered the United States without inspection and/or is otherwise undocumented may not adjust his or her status to lawful permanent resident based upon an approved immigrant petition because of the manner of entry and/or the status.
However, a previously-ineligible individual who has been granted Deferred Action for Childhood Arrivals (“DACA) may apply for a re-entry permit known as “Advance Parole” for humanitarian, employment or educational reasons. If granted, and the individual then travels out of the United States and re-enters with Advance Parole, s/he may be eligible to apply to adjust status to Lawful Permanent Resident (LPR) within the United States on the basis of an immediate relative petition.
However, as with most attempted entries into the United States, doing so with DACA Advance Parole is not without risk because, even if U.S. Citizenship and Immigration Services or (USCIS) grants one’s DACA Advance Parole, U.S. Customs and Border Protection or (CBP) could still refuse admission to the United States. In fact, even though DHS has indicated that CBP should honor Advance Parole granted by USCIS, the CBP officer at the port of entry still has complete discretion to admit or refuse to admit any individual with a visa and/or Advance Parole. This could result in that individual being removed to his/her country of origin.
In sum, although an individual with DACA Advance Parole, may be eligible to adjust his/her status to LPR with a proper basis, because of the complex and ever-changing nature of immigration law, as well as the risks of traveling internationally DACA Advance Parole, one should always consult with an experienced immigration lawyer before attempting to do so.