LexisNexis® CLE On-Demand features premium content from partners like American Law Institute Continuing Legal Education and Pozner & Dodd. Choose from a broad listing of topics suited for law firms, corporate legal departments, and government entities. Individual courses and subscriptions available.
Angelo A. Paparelli, Aug. 28, 2017 - "Deciphering the workings of the bureaucratic mind is never easy. What seems settled practice is often anything but. Abrupt abandonment of longstanding policy can happen in a nanosecond — many times with nary a word of forewarning or explanation. Usually there’s an unstated backstory — one that can be divined by asking the forensic question first popularized by the Romans: Cui bono? (Who benefits?) Yet once in a while there is simply no logical explanation.
A recent example of illogic at its most stark comes from an unexplained about-face in policy just adopted by the nation’s agency that grants or denies immigration benefits — U.S. Citizenship and Immigration Services (USCIS), a component within the Department of Homeland Security (DHS). This “turnabout is unfair play” change involves “advance parole,” the privilege to enter the U.S. without a visa that USCIS and its predecessor, the old Immigration and Naturalization Service, have collectively made available for decades.
This USCIS policy change will unnecessarily impede the flow of U.S.-based global travel to and from the United States. Without strengthening the integrity of the immigration system, or enhancing President Trump’s admonition to “Hire American,” the change will gum up the workings of the national and global economy, and needlessly disrupt the lives of individuals and families here and abroad.
A few words of explanation: Advance parole is a special form of permission to return to the U.S. without a visa stamp in one’s passport. As the name applies, USCIS grants it to a foreign national before s/he leaves the country. It is a generally reliable reassurance that the advance parolee will be allowed to reenter upon return from foreign travel. It is also essential to most persons applying for a green card, because a different USCIS rule treats applications for adjustment as having been abandoned if the applicant travels abroad without having first received advance parole. In the exercise of agency discretion, USCIS grants parole in finite increments for legitimate business or personal reasons requiring travel abroad.
Until a few weeks ago, USCIS’s standard practice has been to allow noncitizens — largely green card applicants — already granted a period of advance parole to apply for, and receive renewal for another term before the current grant expires. For years, USCIS allowed this beneficial practice to persist, presumably so that frequent international travelers would have no advance-parole gap, and thus, no impediment to travel abroad and reentry.
But now, USCIS apparently has just remembered that an instruction to the advance parole application (Form I-131) states: “If you depart from the United States before the Advance Parole Document is issued, your application for an Advance Parole Document will be considered abandoned.” In plain English, this means that if you are a noncitizen who (1) has an unexpired advance parole document, (2) applies for renewal, and (3) travels abroad with the intention of returning before the initial grant expires, then the act of departure NULLIFIES your renewal application because USCIS considers that you’ve abandoned it.
This would be little more than an annoyance involving the burden of reapplication if USCIS adjudicated advance parole applications quickly. To every applicant’s dismay, however, USCIS — according to its own published processing times reports — takes between SIX TO NINE MONTHS to decide whether or not to grant advance parole.
The upshot of this USCIS policy reversal is that it creates a de facto foreign travel ban. It means that most green card applicants cannot leave the U.S. on short notice no matter if grandma is dying or a business emergency requires immediate foreign travel. It also means that if they do leave the country without advance parole travel authorization or re-authorization, not only will they have to reapply for a green card (assuming they have a visa for reentry), they might not even be able to get back in at all. Some might be required to apply for and receive a nonimmigrant or immigrant visa from a U.S. consulate abroad; others who had been unlawfully present in the United States before their departure might have to wait three or ten years before becoming eligible to receive a visa and return to the United States.
Furthermore, for the two categories of nonimmigrants who can travel abroad and reenter without advance parole — H-1B (Specialty Occupation workers and their H-4 dependents) and L-1 (Intracompany Transferees and their L-2 family members) — they may well need to apply for renewals of their visas at a consular post abroad, but only after USCIS has approved their employers’ requests to extend the visa-petition validity period.
So what’s this all about USCIS? Asking the “who benefits” questions, we wonder: Is it you? Does your agency reap a windfall in additional filing fees from abandoned and renewal applications for advance parole travel authorization? The answer is “no.” Ever since July 30, 2007, renewal applications for advance parole on Form I-131 require no filing fee.
In other words, USCIS will be required to renew advance parole applications for free, and deal with a slew of expedited-adjudication requests for advance parole renewals, also for zero dollars. Perhaps USCIS adjudicators look with envy at immigration officers in other DHS components who view themselves as unshackled by executive orders to clamp down hard on illegal immigration. So, folks at USCIS headquarters: Is this a dog whistle? Have you concluded, perhaps for the sake of your own and your teammates’ job security, that you must be seen as strictly enforcing the eligibility requirements for legal immigration benefits, even if all stakeholders and your agency suffer?
If that’s the case, you’ve gone too far. Your forebears at INS and your former selves in prior administrations realized that when a “rule” makes no sense, hurts immigration stakeholders for no good reason, and puts more uncompensated work on your desks, the appropriate course is to see if another, less damaging interpretation might be permissible. A more relaxed view of the so-called rule is especially warranted if the requirement merely originates in an instruction to a form.
To be sure, 8 CFR § 103.2(a)(1) provides that USCIS form “instructions are incorporated into the regulations requiring its submission.” But a warning or advisal in this context that USCIS would consider departure from the United States as an abandonment of an advance parole application cannot fairly be considered an instruction that explains how to complete and file a form to request permission to reenter the United States. Moreover, if your agency has already granted permission to travel abroad and return on a document that is unexpired, why would you infer that an advance parole renewal application has been abandoned? Have you already forgotten that a 2012 Board of Immigration Appeals precedent decision binding upon your agency — under a common sense reading of the immigration laws — expressly rejected your interpretation that travel outside United States with an unexpired advance parole document authorizing one’s readmission is not to be treated as an abandonment of the pending application.
So again I ask you, the leaders of USCIS, who benefits from this senseless policy reversal?"