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1 [1] (January 8, 2015)

handle is hein.crs/crsuntaahap0001 and id is 1 raw text is: Con gresinfRsrhSeve 0 January 8, 2015 Deferred Action, Advance Parole, and Adjustment of Status The Obama Administration's recent announcement that it is expanding its Deferred Action for Childhood Arrivals (DACA) initiative, and creating a DACA-like program for unlawfully present aliens whose children are U.S. citizens or lawful permanent residents (LPRs), has prompted questions about whether and how deferred action beneficiaries could acquire LPR status as the result of a grant of advance parole. DACA beneficiaries may currently be granted advance parole for humanitarian, educational, or employment purposes, and the Executive is expected to make similar provisions for the aliens granted deferred action through its new initiatives. As explained below, some aliens granted advance parole could potentially acquire LPR status because of how certain provisions of the Immigration and Nationality Act (INA) are construed. However, there are statutory limits upon who may acquire LPR status in this way, and a grant of advance parole is not the only way such aliens could become LPRs. asic Legal Framework The INA's provisions regarding adjustment of status, parole, and the 3- and 10-year bars upon the admission of aliens who have been unlawfully present in the United States for more than 180 days apparently have been construed to permit aliens to acquire LPR status as the result of advance parole. Adjustment of Status Pursuant to INA §245(a) INA §245(a) generally permits the Secretary of Homeland Security, in his discretion and under such regulations as he may prescribe, to adjust the status of any alien who was inspected and admitted or paroled into the United States to that of an LPR provided the alien is admissible ... for permanent residence, among other things. (Adjustment is also possible under other provisions of the INA, but the discussion in this In Focus is limited to adjustment pursuant to INA §245(a).) The requirements that an alien (1) has been inspected and admitted or paroled and (2) is admissible as an LPR generally serve to limit unlawfully present aliens' eligibility to adjust their status while within the United States, even if the alien has a family member or an employer who is able and willing to sponsor the alien for an immigrant visa. Aliens who are unlawfully present as the result of having entered the United States without authorization generally cannot satisfy the requirement that an alien have been inspected and admitted or paroled in order to qualify for adjustment of status. Under the INA, admission specifically refers to the lawful entry of an alien ... after inspection and authorization by an immigration officer, while parole refers to an entry-which does not constitute an admission - that is also authorized by immigration officials. See INA §101(a)(13)(A), 8 U.S.C. §1101(a)(13)(A) (admission); INA §212(d)(5)(A), 8 U.S.C. §1182(d)(5)(A) (parole). Aliens who are unlawfully present, either as the result of an unauthorized entry or because they overstayed a visa or otherwise violated the conditions of their temporary presence in the United States, are also often inadmissible pursuant to INA §212(a)(9)(B)(i), 8 U.S.C. §1182(a)(9)(B)(i). INA §212(a)(9)(B)(i) generally bars aliens who have been unlawfully present in the United States for a period of more than 180 days and less than 1 year from admission within 3 years of their departure or removal. Those who are unlawfully present for one year or more are generally barred from admission for 10 years. Advance Parole Pursuant to INA §2 2(d)(5)(A) A grant of advance parole pursuant to INA §212(d)(5)(A) could, however, help an alien to qualify for adjustment of status by enabling the alien to (1) leave the United States and return to it in such a way that the alien is seen to have been inspected and admitted or paroled and (2) avoid the 3- and 10-year bars on admission that would generally be triggered by the departure of aliens who have been unlawfully present in the United States for over 180 days (and thus potentially be admissible.. .for permanent residence). Inspected and Admitted or Paroled Advance parole is one type of parole pursuant to INA §212(d)(5)(A), which generally grants the Secretary of Homeland Security broad authority to permit the entry of any alien applying for admission into the United States, under such conditions as he may prescribe, on a case-by- case basis for urgent humanitarian reasons or significant public benefit. Specifically, advance parole has been used to permit the return to the United States of certain aliens who have been physically present within the country, but lack any generally recognized legal right to return to the country after leaving it. Aliens who leave the United States and return pursuant to a grant of advance parole have historically been seen to have been inspected and admitted or paroled, and, thus, as having met the first requirement for adjustment of status. www.crs.gov 7-5700

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