Traveling Abroad With DACA and DAPA – Pathway to Citizenship?

In December 1, 2014
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Traveling abroad is probably the most prevalent question on the minds of many undocumented immigrants who find themselves trapped in the United States, unable to leave the country for fear of triggering the three-year or ten-year bars.

Now, thanks to the President’s recent immigration announcement, undocumented immigrants who qualify for and receive Deferred Action for Childhood Arrivals (DACA) or Deferred Action for Parental Accountability (DAPA), can apply for permission to travel abroad, before returning to the U.S.

Such travel is already permissible for existing DACA recipients under a procedure known as “advance parole,” which allows DACA recipients to travel abroad for employment, educational and humanitarian reasons. Now the Department of Homeland Security Secretary Jeh Johnson has directed the DHS general counsel to issue guidance clarifying the use of advance parole once and for all.

Put simply, advance parole is a mechanism that allows an immigrant to travel outside the U.S. and return. In Matter of Arrabally, 25 I&N Dec. 771 (BIA 2012), the Board of Immigration Appeals determined that an undocumented immigrant who leaves the country on advance parole had not “departed” the U.S.—meaning that their absence and subsequent entry on parole did not trigger the ground of inadmissibility that bars admission after the accrual of unlawful presence. Those bars require that immigrants wait abroad either 3 or 10 years, depending on how long they were in unauthorized status, before being able to come back lawfully.

Secretary Johnson’s new memo states that the DHS general counsel’s guidance will clarify that in all cases where immigrants leave the U.S. on advance parole, they have not “departed” within the meaning of the Immigration and Nationality Act’s provisions on the 3 and 10-year bars.

Beyond traveling abroad to see family members and explore new countries, what other benefits can advance parole grant? 

Certain individuals who travel abroad and return to the U.S. pursuant to a grant of DACA or DAPA, and advance parole, would cure a prior unlawful entry. When that prior unlawful entry is cleared, a DACA or DAPA recipient can potentially adjust their status in the U.S. without leaving the country.

For example, an employer could potentially sponsor an employee with DAPA for a green card if that employee leaves the U.S. on advance parole and returns. Similarly, a U.S. citizen can petition an immediate family member — a spouse, child or parent — without requiring any other waiver for unlawful entry because travel on advance parole would cure it.

Thus, advance parole, along with DACA and DAPA, provides many intending immigrants with a pathway to citizenship. 

Applications for the new programs are not available yet. Applicants planning to travel abroad must wait until after they have received DACA or DAPA to do so, otherwise they would be rendered ineligible for the program. Applicants with criminal convictions should consult with an attorney, and await new guidance before venturing to travel abroad.

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