The realm of immigration law is constantly evolving, and one area that has seen significant updates over the years is the use of travel permits or “advance parole” by individuals with specific immigration statuses like Deferred Action for Childhood Arrivals (DACA) and Temporary Protected Status (TPS). These travel permits allow individuals to leave the United States temporarily and return without triggering the severe penalties associated with unlawful presence—an issue that has critical implications for those seeking permanent residency or other legal immigration statuses.

In 2012, a landmark decision from the Board of Immigration Appeals (BIA) called Matter of Arrabally and Yerrabelly fundamentally altered how travel permits affect the penalties of unlawful presence. This post examines that precedent, its application to DACA and TPS holders, and recent shifts in Department of State policies that add new layers of complexity for those considering international travel.

The BIA’s decision in Matter of Arrabally and Yerrabelly addressed a key issue regarding advance parole or travel permits: when individuals with pending immigration cases or statuses travel outside the U.S. and return, do they “trigger” unlawful presence penalties.

The penalty for unlawful presence applies to individuals who remain in the United States without legal status for extended periods. Those unlawfully present for more than one year face a ten-year reentry ban if they leave the country, while those with unlawful presence between six months and one year face a three-year ban. The BIA’s decision in Matter of Arrabally clarified that leaving the U.S. on advance parole would not activate these penalties. Essentially, for immigration purposes, the trip is regarded as if the individual never left.

This decision was significant, particularly for DACA and TPS holders. Prior to 2012, advising these individuals to obtain a travel permit was uncommon due to the risk of facing the 3- or 10-year reentry bans upon return. However, Matter of Arrabally established that when a person leaves and re-enters the United States with a travel permit, they do not activate the penalties tied to unlawful presence.

As a result, many DACA and TPS holders used this legal clarification to their advantage, securing travel permits, leaving the country, and then re-entering to proceed with processes such as applying for residency. The decision provided greater flexibility and security, as these individuals could now travel without the fear of severe reentry penalties.

According to the Department of State’s new interpretation, if a DACA or TPS holder travels abroad to obtain a nonimmigrant visa stamp at a U.S. consulate (for example, for an H-1B or another professional visa), their departure will now trigger the penalties associated with unlawful presence. The reasoning behind this is that the protection granted by Matter of Arrabally only applies to those returning to adjust their status, rather than those leaving to obtain a nonimmigrant visa.

This means that while Matter of Arrabally still protects individuals traveling with a permit to re-enter the U.S. for adjustment of status, it no longer shields those departing to secure a visa for a nonimmigrant purpose.

For DACA and TPS holders, this recent interpretation introduces a significant complication. A person who, under the previous understanding, might have expected to return smoothly may now face additional challenges upon reentry if they traveled for a nonimmigrant visa. Specifically, they may need to request a waiver known as the 212(d)(3) waiver to mitigate the effects of unlawful presence. This waiver application process can be time-consuming, potentially prolonging their stay abroad while awaiting approval.

This change has a notable impact on individuals who might, for instance, have an employment-based visa petition and plan to go to a U.S. consulate for their visa stamp. Previously, such a scenario wouldn’t trigger unlawful presence penalties under the understanding provided by Matter of Arrabally. However, the Department of State’s new stance means that these individuals may need to navigate additional legal steps, like applying for a 212(d)(3) waiver, before they can re-enter the U.S. without complications.

Given the complexities of this new interpretation, it is imperative for DACA or TPS holders considering travel for nonimmigrant visa purposes to consult with an experienced immigration attorney before making any plans to leave the country. A knowledgeable attorney can help evaluate the specific circumstances and advise on the potential need for a waiver or any other actions required to avoid triggering the penalties associated with unlawful presence.

This new guidance also serves as a reminder that immigration law is dynamic, with policies and interpretations shifting over time. What may have been applicable or advisable in one year could change significantly the next. Staying informed of these changes is essential to making informed decisions that safeguard one’s legal status and avoid unintended immigration consequences.

The Matter of Arrabally decision remains a critical element of immigration law for individuals with travel permits, especially those adjusting status upon return to the United States. However, the recent interpretation by the Department of State has added a significant caveat to this understanding for DACA and TPS holders seeking nonimmigrant visas. Given the potential for extended stays abroad and the need for additional waivers, consulting with an immigration attorney is more important than ever for those in these categories.

If you are a DACA or TPS holder considering international travel for a visa stamping or other purposes, reach out to a knowledgeable immigration attorney to ensure you understand how the latest policies may affect you. We are here to provide guidance and clarity on these complex issues, helping you navigate your immigration journey with confidence and security.