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Will individuals who request DACA be permitted to travel outside the United States?

October 26, 2012 by Thomas Geygan

Taken from the Legal Action Center Practice Advisory 10/25/2012

Individuals who travel outside the United States after August 15, 2012 — either before they request DACA or while their requests are pending — will not be considered for DACA. Thus, all clients should understand that any departure after August 15, 2012, but before a grant of deferred action (regardless of being brief, casual and innocent) will disqualify them from receiving DACA.

Individuals who have been granted deferred action may be permitted to travel abroad, but only pursuant to a grant of advance parole from USCIS. After receiving deferred action, individuals seeking to travel outside the United States must apply for advance parole by filing Form I-131  (Application for Travel Document) and paying the $360 filing fee. USCIS generally will grant advance parole to a DACA recipient only if the purpose of the intended travel is humanitarian, educational or employment-related. The advance parole must have been granted prior to any departure.

Individuals who receive deferred action but are subject to a final order of removal may apply for advance parole. However, the FAQs caution that before leaving the United States, such individuals should seek to reopen their cases before the immigration courts and obtain administrative closure or termination of their removal proceedings. Otherwise, their departures may cause them to be “considered deported or removed, with potentially serious future immigration consequences.”

Even if travel abroad is permitted via advance parole, it may not be in an individual’s best interest. Although unlawful presence will not accrue during any deferred action period, individuals who have reached the age of eighteen may be subject to the inadmissibility bars if they have previously been unlawfully present in the United States for more than 180 days. The Board’s recent decision in Matter of Arrabally & Yerrabelly, 25 I&N Dec. 771 (BIA 2012), however, hints at a possible advantage to travel on advance parole. Under the specific circumstances of that case (where an applicant for adjustment triggered the unlawful presence ground of inadmissibility solely because of travel on advance parole), the BIA held that a departure under advance parole after more than 180 days of unlawful presence did not trigger the three- and ten-year bars.

Under no circumstances should an individual granted deferred action travel abroad without a grant of advance parole. Such an individual will be subject to any applicable grounds of inadmissibility upon returning to the United States.

Filed Under: DACA/DAPA, Family Visas, Reform/New Laws

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