Tag Archive for: DOS

Cyrus Mehta

State Department’s Interpretation of Matter of Arrabally and Yerrabelly at Odds with BIA’s  

/0 Comments/in /by

By Cyrus D. Mehta and Kaitlyn Box*

In a previous blog, we analyzed Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), a seminal Board of Immigration Appeals case which held that a departure under advance parole does not trigger the 10 year bar provision under § 212(a)(9)(B)(i)(I). The BIA reasoned that travel under a  grant of advance parole is different from a regular departure from the US, since the individual is given the assurance that they will be paroled back in the US to continue to seek the benefit of adjustment of status. Thus, traveling outside the US under advance parole does not trigger the 10 year bar. Although Matter of Arrabally and Yerrabelly interpreted the 10 year bar provision under § 212(a)(9)(B)(i)(I), its rationale has also  applied equally to the 3 year bar under § 212(a)(9)(B)(i)(I), but had never been officially confirmed.

On September 5, 2024, USCIS updated guidance on its website to state the following:

Furthermore, under Matter of Arrabally and Yerrabelly, 25 I&N Dec 771 (BIA 2012), a noncitizen who accrued more than 180 days of unlawful presence during a single stay and left is not inadmissible under INA 212(a)(9)(B)(i)(II) when they again seek admission, if they left the United States after first obtaining an advance parole document. While the Board of Immigration Appeals, in Matter of Arrabally and Yerrabelly, stated that its decision was limited to INA 212(a)(9)(B)(i)(II), the board’s reasoning in Matter of Arrabally applies equally to INA 212(a)(9)(B)(i)(I). For this reason, we apply the decision to both INA 212(a)(9)(B)(i)(I) and (II).

This language makes clear that USCIS will apply Matter of Arrabally and Yerrabelly when making determinations of inadmissibility under INA 212(a)(9)(B)(i)(I) relating to the 3 year bar and INA 212(a)(9)(B)(i)(II) relating to the 10 year bar. The guidance also emphasizes that Matter of Arrabally and Yerrabelly applies equally to INA 212(a)(9)(B)(i)(I), although the BIA decision itself dealt only with INA 212(a)(9)(B)(i)(II). The corresponding section of the USCIS Policy Manual (Volume 8, Part O) has yet to be updated to reflect this guidance.

Matter of Arrabally and Yerabelly enables individuals to escape the 3 and 10 year bar when they depart the US under advance parole in various contexts. For instance, an applicant for adjustment of status can request advance parole, and a departure under such advance parole does not trigger the 3 and 10 year bar. Similarly, a DACA recipient who obtains advance parole and travels pursuant to this grant of advance parole also does not trigger the 3 and 10 year bar. The USCIS has also applied Matter of Arrabally and Yerrabelly to one who leaves the US pursuant to travel authorization under Temporary Protected Status.

The U.S. Department of State (DOS) policy surrounding INA 212(a)(9)(B)(i)(I) and INA 212(a)(9)(B)(i)(II)  is highly inconsistent with this USCIS guidance, however. In meeting with DOS on October 10, 2024 the American Immigration Lawyers Association (AILA)’s DOS liaison committee posed the following question:

“Members report instances where DACA recipients who have received Advance Parole have been determined to be inadmissible under the three- and/or 10-year bars. This is contrary to the Board of Immigration Appeals decision in Matter of Yarrabelly and Arrabelly…Can DOS confirm that consular officers are instructed to apply the Yerrabelly/Arrabelly holding and that, as such, any visa applicant who is traveling pursuant to the approval of Advance Parole would not require a waiver under INA§212(d)(3) for a violation of 212(a)(9)(B)? This would be consistent with USCIS’s recent update…”

 

DOS responded by stating:

In Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771(BIA 2012), the Board of Immigration Appeals held “that an alien who has left and returned to the United States under a grant of advance parole has not made a ‘departure . . . from the United States’ within the meaning of section 212(a)(9)(B)(i)(II) of the Act.” The holding and discussion throughout Arrabally makes clear that advance parole allows a noncitizen who needs to leave and return to the United States to do so with the expectation that the noncitizen “will be presenting himself for inspection without a valid visa in the future” so that “he will, upon return, continue to pursue the adjustment of status application he filed before departing.” Arrabally in no way holds that advance parole can be used as a way to leave the United States and to obtain a visa (as opposed to pursuing an adjustment of status) without application of the congressionally mandated visa ineligibility for accrual of unlawful presence in excess of 180 days.

This Q&A is available online.

DOS’ policy will not recognize Matter of Arrabally and Yerrabelly if a noncitizen, for example, obtains DACA after age 18.5, leaves the U.S. on advance parole, and applies for an H-1B visa at a US consulate. Although this applicant departed the U.S. on advance parole, DOS would nonetheless consider them to have triggered the inadmissibility bar at INA 212(a)(9)(B)(i). In order to obtain an H-1B visa, the applicant would need a 212(d)(3) waiver of unlawful presence. Similarly, DOS is unlikely to apply Matter of Arrabally and Yerrabelly to one who left the U.S. under advance parole and seeks to be readmitted to the U.S. with an immigrant visa.

There is no reason for DOS to restrict the interpretation in Matter of Arrabally and Yerrabelly to one who departed the US under advance parole and will be returning to the US on advance parole rather than on a newly obtained visa at the US consulate. The BIA in Matter of Arrabally and Yerrabelly correctly interpreted that one who leaves under advance parole does not effectuate a departure for purposes of triggering the 10 year bar under INA 212(a)(9)(B)(i)(II). If the individual chooses to return on a visa rather than advance parole, it should not change the fact that there was no departure under advance parole at the point in time when they left the US. Thus far, the USCIS has not restricted its interpretation in the same manner as DOS.

The DOS’s interpretation has also been inconsistent with the USCIS’s interpretation in other instances. For example, the DOS has  not recognized the Dates for Filing to protected the age of a child under the Child Status Protection Act as the USCIS has prudently done.  Now the DOS’s interpretation of Matter of Arrabally and Yerrabelly is also at odds with USCIS’s. Such inconsistent interpretations between the USCIS and DOS  only create further hardship and difficulties for noncitizens who are already struggling to navigate a complex and byzantine immigration system.

 

 

 

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta

CSPA Disharmony: USCIS Allows Child’s Age to be Protected under the Date for Fling while DOS Allows Child’s Age to be Protected under the Final Action Date

/0 Comments/in /by

By Cyrus D. Mehta

On February 14, 2023, the USCIS recognized that the age of the child gets protected  under the Child Status Protection Act when the Date for Filing (DFF) in the  Department of State (“DOS” or “State Department”) Visa Bulletin becomes current.

Since October 2015, the State Department Visa Bulletin two different charts to determine visa availability – the Final Action Dates (FAD) chart and the Dates for Filing (DFF) chart. The DFF in the Visa Bulletin potentially allows for the early filing of I-485 adjustment of status applications if eligible applicants are in the United States. The FAD is the date when permanent residency can be granted.  The Filing Date, if the USCIS so determines, allows for the early submission of an I-485 application prior to the date when the green card actually become available.

Prior to February 14, 2023, the USCIS maintained that the FAD protected the age of the child and not the DFF.  Using the DFF to protect the age of the child who is nearing the age of 21 is clearly more advantageous – the date becomes available sooner than the FAD – but USCIS policy erroneously maintained since September 2018 that only the FAD could protect the age of the child.

The USCIS on February 14, 2023 at long last agreed to use the DFF to protect the age of the child, and acknowledged this:

“After the publication of the May 2018 guidance, the same applicant for adjustment of status could have a visa “immediately available” for purposes of filing the application but not have a visa “become available” for purposes of CSPA calculation. Applicants who filed based on the Dates for Filing chart would have to pay the fee and file the application for adjustment of status without knowing whether the CSPA would benefit them. To address this issue, USCIS has updated its policies, and now considers a visa available to calculate CSPA age at the same time USCIS considers a visa immediately available for accepting and processing the adjustment of status application. This update resolves any apparent contradiction between different dates in the visa bulletin and the statutory text regarding when a visa is “available.”

Even if the child’s age is protected  when the DFF becomes current, the applicant must have sought to acquire permanent resident status within one year INA 203(h)(1)(A). According to the USCIS Policy Manual this could include filing a Form I-485, Form DS 260, paying IV fee, I-864 fee, I-824 or requesting transfer of underlying basis of an I-485.

Unfortunately, USCIS’s policy of using the DFF to protect a child’s age seems only to pertain to individuals who apply for adjustment of status within the United States. The Department of State (DOS) has yet to issue any corresponding guidance or update the Foreign Affairs Manual (FAM) in accordance with USCIS’s new policy. The FAM still states that an applicant’s “CSPA age’ is determined on the date that the visa, or in the case of derivative beneficiaries, the principal applicant’s visa became available (i.e., the date on which the priority date became current in the Application Final Action Dates and the petition was approved, whichever came later) (emphasis added)”. Thus, an applicant outside the U.S. who pays an immigrant visa (IV) fee may satisfy the “sought to acquire” requirement, but only based on the FAD becoming current. This uneven policy makes little sense, and the DOS should promulgate its own guidance in accordance with USCIS’s policy to ensure that the DFF can also be used to protect the age of a child who processes for a visa overseas.

This results in an odd anomaly. A child who is seeking to immigrate through consular processing in the foreign country may not be able to take advantage of the CSPA under the DFF while a child who is seeking to adjust status while in the US can have the age protected under the DFF. Take the example of an Indian born beneficiary of a Family-Based Third Preference Petition, which applies to married sons and daughters of US citizens. The I-130 petition was filed by the US citizen parent on behalf of the married daughter, Nikki,  on March 2, 2009. The FAD on this I-130 petition became current under the State Department Visa Bulletin on January 1, 2024 and Nikki has been scheduled for an immigrant visa interview date on February 1, 2024 at the US Consulate in Mumbai. But the daughter’s son, Vivek, who was born on June 1, 1998 has already aged out and cannot get protected under the FAD since he is already 26.

On the other hand, the DFF on this petition became current on June 1, 2020.  The NVC notified Nikki and her derivative Vivek to pay the fee and complete the rest of the processing such as filing the DS 260 application. On June 1, 2020, Vivek was already 22 years.  However, the I-130 petition that was filed on March 2, 2009 took one year  and 1 day to to get approved on March 3, 2010. Under INA 203(h)(1)(A) the CSPA age is calculated based on the age of the child when the visa becomes available reduced by the number of days during which the I-130 petition was pending. So even though Vivek’s biological age on June 1, 2020 was 22, his CSPA age was under 21. By seeking to acquire permanent residency within one year of June 1, 2020, Vivek’s CSPA age got permanently locked in under the DFF.

Nikki paid the NVC fee on December 1, 2020  but took her time with the completion of  the DS 160 applications, which were submitted sometime in the month of  July 2021. Vivek’s age is protected under the DFF on June 1, 2020, which became current well before the FAD became current. He also sought to acquire lawful permanent resident status by paying the NVC fee within one year of June 1, 2020 along with his mother, Nikki, even though they filed their DS 260 applications after a year from the DFF becoming current.  If Vivek is seeking to process the case through consular processing at the US Consulate in Mumbai, he cannot do so as the State Department only recognizes the FAD to protect the child under the CSPA. But if Vivek is in the US in a nonimmigrant status such as F-1 he will luck out. Once Nikki is issued the immigrant visa in Mumbai, she can get admitted in the US as a permanent resident. Vivek can subsequently file an I-485 application in the US while in F-1 status as a follow to join derivative. Vivek can also argue that he sought to acquire permanent resident status by paying the NVC fee within 1 year of the DFF becoming current.

If for any reason Vivek’s  I-485 application is denied because the USCIS did not accept that the payment of the NVC fee amounted to Vivek seeking to acquire, he would still arguably as explained in our prior blog be able to maintain F-1 status under Matter of Hosseinpour, which recognized  inherent dual intent in nonimmigrant visas. Matter of Hosseinpour involved an Iranian citizen who entered the U.S. as a nonimmigrant student and later applied for adjustment of status. After his adjustment of status application was denied, he was placed in deportation proceedings and found deportable by an immigration judge on the ground that he violated his nonimmigrant status by filing an adjustment of status application. The BIA disagreed with this interpretation of the nonimmigrant intent requirement for foreign students, noting the amendments to the Immigration and Nationality Act had expressly removed a provision stating that an individual’s nonimmigrant status would automatically terminate if he filed an adjustment of status application. Thus, the BIA held that “filing of an application for adjustment of status is not necessarily inconsistent with the maintenance of lawful nonimmigrant status”. The BIA also referred to legal precedent which states that “a desire to remain in this country permanently in accordance with the law, should the opportunity to do so present itself, is not necessarily inconsistent with lawful nonimmigrant status.” (See Brownell v. Carija, 254 F.2d 78, 80 (D.C. Cir. 1957); Bong Youn Choy v. Barker, 279 F.2d 642, 646 (C.A. 9, 1960). See also Matter of H-R-, 7 I & N Dec. 651 (R.C. 1958)).

Notwithstanding the disharmony between the USCIS and State Department CSPA policy, Vivek is able to take advantage of the more favorable DFF because he happened to be in the US in F-1 status and the USCIS belatedly recognized that the DFF could be relied on to protect the age of the child on February 14, 2023. Not all derivative beneficiaries might be so fortunate. Take the example of Vivek’s twin sister Kamala who is not in the US in F-1 status like her brother. Her only option to take advantage of the more favorable DFF is to obtain a B-2 visa and then file an I-485 in the US after Nikki is admitted as a lawful permanent resident. It might be impossible for Kamala to obtain a B-2 visa as the nonimmigrant visa applicant needs to demonstrate a foreign residence abroach which she has not abandoned. A consular officer may well refuse her application for the B-2 visa under INA 214(b) as she has not been able to establish that she is not an intending immigrant. Even if Kamala already obtained a B-2 visa stamp previously, she would need to enter the US in B-2 status and subsequently file the I-485 with the USCIS. The USCIS may deny the I-485 if Kamala entered the US with an intent to file for permanent residency in the US under the fraud or willful misrepresentation ground of inadmissibility under INA 212(a)(6)(C)(i). Of course, if Kamala is able to get admitted into the US on a dual intent H-1B or L-1 visa, she can file the I-485 application without any issues.

If the DOS aligned its CSPA policy with the USCIS, there would be no need for such convoluted albeit legal workarounds. Both Vivek in the US and Kamala in India would be able to seek the protection of the CSPA based on the DFF becoming current on June 1, 2020.