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IMMIGRATION NOVEMBER 15, 2024 | The Indian Eye 35

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be presenting himself for inspection to be readmitted to the U.S. with an 10 year bar under INA 212(a)(9) to protected the age of a child under
without a valid visa in the future” so immigrant visa. (B)(i)(II). If the individual chooses the Child Status Protection Act as
that “he will, upon return, continue There is no reason for DOS to to return on a visa rather than ad- the USCIS has prudently done.
to pursue the adjustment of status ap- restrict the interpretation in Matter vance parole, it should not change Now the DOS’s interpretation of
plication he filed before departing.” of Arrabally and Yerrabelly to one the fact that there was no departure Matter of Arrabally and Yerrabelly is
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Arrabally in no way holds that who departed the US under advance under advance parole at the point in also at odds with USCIS’s. Such in-
advance parole can be used as a way parole and will be returning to the time when they left the US. Thus far, consistent interpretations between
to leave the United States and to ob- US on advance parole rather than on the USCIS has not restricted its in- the USCIS and DOS only create fur-
tain a visa (as opposed to pursuing an a newly obtained visa at the US con- terpretation in the same manner as ther hardship and difficulties for non-
adjustment of status) without appli- sulate. DOS. citizens who are already struggling
cation of the congressionally mandat- The BIA in Matter of Arrabally The DOS’s interpretation has to navigate a complex and byzantine
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ed visa ineligibility for accrual of un- and Yerrabelly correctly interpreted also been inconsistent with the US- immigration system.
lawful presence in excess of 180 days. that one who leaves under advance CIS’s interpretation in other in- *Kaitlyn Box is a Senior Associate at
This Q&A is available online. parole does not effectuate a depar- stances. For example, the DOS has Cyrus D. Mehta & Partners PLLC.
DOS’ policy will not recognize ture for purposes of triggering the not recognized the Dates for Filing
Matter of Arrabally and Yerrabelly ___________________________________________________________________________________________________________________________________
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if a noncitizen, for example, obtains Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Partner of Cyrus D. Mehta &
DACA after age 18.5, leaves the U.S. Partners PLLC in New York City. Mr. Mehta is a member of AILA’s Administrative Litigation Task Force; AILA’s EB-5 Committee;
on advance parole, and applies for former chair of AILA’s Ethics Committee; special counsel on immigration matters to the Departmental Disciplinary Committee,
an H-1B visa at a US consulate. Al- Appellate Division, First Department, New York; member of the ABA Commission on Immigration; board member of Volunteers
though this applicant departed the
U.S. on advance parole, DOS would for Legal Services and board member of New York Immigration Coalition. Mr. Mehta is the former chair of the Board of Trustees
nonetheless consider them to have of the American Immigration Council and former chair of the Committee on Immigration and Nationality Law of the New York
triggered the inadmissibility bar at City Bar Association. He is a frequent speaker and writer on various immigration-related issues, including on ethics, and is also an
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INA 212(a)(9)(B)(i). In order to adjunct professor of law at Brooklyn Law School, where he teaches a course entitled Immigration and Work. Mr. Mehta received
obtain an H-1B visa, the applicant the AILA 2018 Edith Lowenstein Memorial Award for advancing the practice of immigration law and the AILA 2011 Michael
would need a 212(d)(3) waiver of Maggio Memorial Award for his outstanding efforts in providing pro bono representation in the immigration field. He has also
unlawful presence. Similarly, DOS is
unlikely to apply Matter of Arrabally received two AILA Presidential Commendations in 2010 and 2016. Mr. Mehta is ranked among the most highly regarded lawyers
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and Yerrabelly to one who left the in North America by Who’s Who Legal – Corporate Immigration Law 2019 and is also ranked in Chambers USA and Chambers
U.S. under advance parole and seeks Global 2019 in immigration law, among other rankings.

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