Dear Atty. Lou,
I got married to a US citizen and he filed a petition for me. Before our marriage, I was already out of status for two years. When my B2 visa expired, I did not leave the US. I met my husband through the internet and that we get along very well. When he filed a petition, I also filed a corresponding adjustment of status application and employment authorization application. I heard last week that USCIS will start issuing cards that both authorizes employment and travel. I want to avail of this card because I wish to visit my mother who I have not seen for a long time. How can I apply for this dual card?
Delia
Dear Delia,
On February 11, 2011, the US Citizenship and Immigration Services issued an announcement that it will start issuing employment authorization and advance parole card. This dual card is only for “certain” applicants for adjustment of status.
Most applicants for adjustment of status are eligible to have employment authorization cards while their application is still pending. There are also applicants for adjustment who are issued advance travel documents when they apply together with their adjustment applications.
With an employment card, the applicant may apply for a social security number, driver’s license and find a job. This is allowed as long as the adjustment of status is pending. In the same way, the USCIS will issue advance parole. However, what is not clear to the applicants is that there is an “inadmissibility” issue if this advance parole is to be used by applicants who had accrued unlawful presence. If the applicant travels with an advance parole and had unlawful presence in the past, s/he might be barred from being issued a green card. This applicant may still be allowed to re-enter the US with the advance parole, but the USCIS may deny the application for adjustment of status because of client’s prior unlawful presence.
The press statement of the USCIS gives this caveat: “Individuals who have been unlawfully present in the US and subsequently depart and seek re-entry through a grant of parole may be inadmissible and ineligible to adjust their status.” In your case Delia, it will not be advisable to apply for an advance parole. You have been out of status for two years. The ten year bar will be triggered if you attempt to use an advance travel card and seek re-entry in the US. This bar applies to you if you depart from the US. It will not apply if you stay in the US until approval of your adjustment of status to permanent resident.
For those who have not incurred unlawful presence prior to filing their application for adjustment of status, both an employment and advance travel document may be filed concurrently with their adjustment application. No additional fees are required. While this new card is a significant improvement from the perspective of the USCIS, it must be applied with vigilance to avoid adverse consequences.
Atty. Lou
(Lourdes Santos Tancinco, Esq is a partner at the Tancinco Law Offices, a Professional Law Corp. Her office is located at One Hallidie Plaza, Ste 818, San Francisco CA 94102 and may be reached at 415.397.0808; email at law@tancinco.com or check their website at tancinco.weareph.com/old. The content provided in this column is solely for informational purpose only and do not create a lawyer-client relationship. It should not be relied upon as legal advice. This column does not disclose any confidential or classified information acquired in her capacity as legal counsel. Consult with an attorney before deciding on a course of action. You can submit questions to law@tancinco.com)
