In a previous article, we commented on the possibility that U.S. Customs and Border Protection (CBP) was relaxing its rules regarding temporary entry (referred to as “advance parole” by the CBP) to the U.S. for individuals with pending waiver applications. We now have more information on this subject, and would like to pass it along.

Advance parole and waivers are very different things. Both pertain to individuals who are inadmissible to the U.S. A waiver is an analysis by the CBP of a variety of relevant factors regarding the person’s criminal offenses or other grounds of inadmissibility, and the threat that the waiver applicant poses to U.S. society, if admitted.

The CBP weighs the positive and negative factors and can grant the individual admission to the U.S. by “waiving” the person’s grounds of inadmissibility. Most waivers are now issued for five years, allowing the waiver holder an unlimited number of entries and exits to the U.S. during that time.

Advance parole is more specific, and is usually granted to persons outside the U.S. for a single entry, or for a limited timeframe.

The reason for requiring entry to the U.S. is the central focus of the advance parole application. Because the reasons often relate to emergency situations or unforeseen events, decisions on advance parole applications can be made more quickly than in the waiver application process.

Common grounds for humanitarian or emergency parole include attendance at a funeral, obtaining medical treatment that is not available in the home country, and testifying in a U.S. court proceeding.

The published immigration laws and regulations give little guidance on the standards or minimum requirements involved, other than to say that each remedy may be approved as a matter of “discretion.” In 1976, a waiver applicant appealed her denial of a waiver, and the court overruled the waiver denial. In the process, the court set forth some basic standards for waiver evaluation that are still used today. Unfortunately, no such court decision exists for advance parole decisions, and the CBP evaluates matters on a case-by-case basis, using internally developed guidelines, to determine if advance parole is justified for humanitarian or emergency reasons.

Until 1997, the former INS viewed the need to pursue one’s livelihood as an international truck driver to be an important enough humanitarian factor to justify advance parole for waiver renewal applicants, or even in some cases for first-time applicants with old and/or relatively minor offenses that suggested a very high likelihood of waiver approval. Unfortunately, that ended in approximately 1997, when changes in the immigration law resulted in a much higher, uniform standard for humanitarian discretion for advance parole and other forms of discretionary legal relief from immigration problems.

For some reason, that changed in the fall of 2004, perhaps in response to the inordinate delays in waiver approvals.

Many Canadian drivers have lost their jobs, or have been assigned to lower paying jobs, due to their inability to enter the U.S. However, the absence of clear, written standards is still a problem and there seems to be a wide disparity of interpretations in the discretion allowed for humanitarian parole. It is by no means a certainty. Our observations from a limited number of applications, is as follows:

* Although Form I-131 is the standard advance parole application form for individuals in the U.S., the CBP is discouraging the submission of a written application. They have shown a preference for having a supervisor or chief inspector review relevant documents in advance, and make a decision without a formal application process with fee.

* If the person is approved for advance parole, he must come to the port of entry for processing and payment of a US$65 fee.

* Parole approval is done at the local level, meaning that subsequent entries to the U.S. can only be made through the port of entry that made the waiver determination. Parole may not be valid, like a waiver approval, at all ports of entry. This could pose problems for a driver who enters the U.S. at several different ports of entry.

* The individual must undergo secondary inspection and receive an I-94 entry document every time he crosses. The person will not receive an entry document valid for multiple entries.

* The entry must be for work purposes, not pleasure. Although the waiver is valid for business or pleasure purposes, advance parole is tied more closely to the reason for needing entry (work as a driver in international commerce).

– Daniel Joyce is a partner with the Buffalo N.Y. law firm Jaeckle Fleischmann & Mugel LLP. He can be reached at (716) 843-3946.