U.S. Tightens Travel Rules as Some Kenyans Face Potential 3- to 10-Year Visa Bars
The United States has changed how immigration authorities may treat departures by certain immigrants travelling under Advance Parole, potentially exposing some people with a history of unlawful presence to three- or 10-year inadmissibility bars.
The change follows a precedent-setting decision issued on August 13 by the Board of Immigration Appeals (BIA), which overturned a 2012 interpretation that had provided greater protection to certain immigrants who left the US using Advance Parole.
Advance Parole is a travel document issued to eligible individuals with pending immigration applications or certain qualifying immigration circumstances. It can allow them to travel outside the United States and seek permission to return without first obtaining a new visa.
Under the previous interpretation, certain immigrants who had accumulated unlawful presence could generally travel using Advance Parole without their departure being treated as a departure that triggered the three-year or 10-year unlawful-presence bars.
The latest BIA ruling changes that position.
Who could face a three- or 10-year bar?
Under US immigration law, a person who has accumulated more than 180 days but less than one year of unlawful presence can face a three-year bar from re-entering the country after departing.
Those who accumulate one year or more of unlawful presence can face a 10-year bar.
The new ruling does not, however, mean that every immigrant who travels using Advance Parole will automatically receive a three- or 10-year ban.
The consequences will depend on the individual’s immigration history, the amount of unlawful presence accumulated and whether a statutory exception or other legal protection applies.
Why the ruling matters to Kenyans in the US
The development could have significant implications for some Kenyans living in the United States who use Advance Parole while waiting for immigration cases to be processed.
Some immigrants rely on the document to travel to Kenya for family emergencies, funerals, holidays or other important personal matters while their applications remain pending.
Under the new interpretation, however, leaving the United States could carry different consequences for an individual who has already accumulated the required period of unlawful presence.
For example, a Kenyan who overstayed a US visa long enough to accumulate unlawful presence and later obtained Advance Parole could face a three- or 10-year inadmissibility bar after leaving the country, depending on the circumstances.
The issue may be particularly important for immigrants who entered the United States without inspection and later attempted to adjust their immigration status.
For years, some of these immigrants had viewed Advance Parole as a mechanism that allowed international travel without triggering the unlawful-presence bars, provided they were subsequently permitted to return through parole.
The BIA’s latest decision has altered that legal landscape, meaning affected immigrants may need to reconsider international travel before leaving the United States.
Immigration attorneys are likely to scrutinise each traveller’s individual circumstances, including how and when they entered the country, whether they accrued unlawful presence, the type of immigration application pending and whether any exception applies.
For Kenyans with immigration cases in progress, the development is therefore not a blanket travel ban but a significant legal warning: having Advance Parole does not necessarily eliminate the potential immigration consequences of leaving the United States.
Anyone who may have accrued unlawful presence should seek advice from a qualified US immigration lawyer before travelling internationally.
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