Yekrangi & Associates is Open! We are now conducting in person, telephone, and video consultations. Please do not hesitate to call us if you have any questions!

What Is an Arriving Alien?

What Is an Arriving Alien?

How Can I Tell if I am Designated as an "Arriving Alien"?

If you were given a Form I-862 Notice to Appear, the notice should indicate if the United States considers you an arriving alien. The Notice to Appear form indicates one of three things:

  1. “You are an arriving alien”
  2. “You are an alien present in the United States, who has not been admitted or paroled.”
  3. “You have been admitted in the United States but are removal for the reasons stated below.”

There will be a checkmark on the first one if you are designated as an arriving alien.

Why Does the Designation Matter?

One big reason why this designation matters is if you or a loved one is in detention. “Arriving aliens” are not eligible for bond. Bond would allow you to pay a specific amount set by a judge so that you can be released from detention until their hearing. As an “arriving alien,” you can only be released on parole at ICE’s discretion.

The other big reason why this indication matters is that it affects who has jurisdiction over your case if you want to apply for adjustment of status. As an “arriving alien,” USCIS will oversee your application. This means that you should apply for adjustment of status through USCIS, and the Immigration Judge (as a representative of EOIR) cannot grant your adjustment of status.

“Arriving Alien” Definition

The term “Arriving Alien” is defined in Title 8 of the Code of Federal Regulations, § 1.2 as:

"an applicant for admission coming or attempting to come into the United States at a port-of-entry, or an alien seeking transit through the United States at a port-of-entry, or an alien interdicted in international or United States waters and brought into the United States by any means, whether or not to a designated port-of-entry, and regardless of the means of transport. An arriving alien remains an arriving alien even if paroled pursuant to section 212(d)(5) of the Act, and even after any such parole is terminated or revoked. However, an arriving alien who was paroled into the United States before April 1, 1997, or who was paroled into the United States on or after April 1, 1997, pursuant to a grant of advance parole which the alien applied for and obtained in the United States prior to the alien's departure from and return to the United States, will not be treated, solely by reason of that grant of parole, as an arriving alien under section 235(b)(1)(A)(i) of the Act."

Who is An Arriving Alien?

How You Enter the United States

We can break the definition down into its parts to better understand what being an arriving alien means:

"an applicant for admission coming or attempting to come into the United States at a port-of-entry, or an alien seeking transit through the United States at a port-of-entry, or an alien interdicted in international or United States waters and brought into the United States by any means, whether or not to a designated port-of-entry, and regardless of the means of transport"

This covers a broad category of people that are entering the United States either legally through a port-of-entry or that is found by the agents of the United States and brought into the United States. The people this does not cover is anyone that enters the United States on their own without going through a port-of-entry or having any other type of contact with a United States official to make their arrival known to the government. This definition also does not cover anyone who was lawfully admitted into the United States, such as if they were admitted with a visa.

Parole Into the U.S.

"An arriving alien remains an arriving alien even if paroled pursuant to section 212(d)(5) of the Act, and even after any such parole is terminated or revoked"

Parole through §212(d)(5) is when an individual is allowed to make a one-time entry into the United States for a specific purpose. These are often things like:

  • Needing medical treatment in the U.S.
  • Visiting a sick relative in the U.S.
  • Attending a funeral in the U.S.
  • Appearing/participating in civil litigation or criminal prosecution

Timing Exception to Parole

This part of the definition, therefore, refers to these people given one-time entry to the United States, meaning they are also classified as “arriving aliens.”

"However, an arriving alien who was paroled into the United States before April 1, 1997, or who was paroled into the United States on or after April 1, 1997, pursuant to a grant of advance parole which the alien applied for and obtained in the United States prior to the alien's departure from and return to the United States, will not be treated, solely by reason of that grant of parole, as an arriving alien under section 235(b)(1)(A)(i) of the Act."

This part of the definition makes a timing exception to the part above. So, anyone that was paroled before April 1, 1997 will not be considered an arriving alien. However, this part also adds that anyone who received advanced parole (when an individual living in the United States gets permission to leave the United States with the promise that the individual will be allowed re-entry), after April 1, 1997 will not be considered an arriving alien.


For further guidance on what your status can mean for you or a loved one, schedule an initial consultation with an immigration attorney at Yekrangi & Associates. Don't hesitate to contact us online or call (949) 478-4963.
We serve Orange County and offer services in Farsi, Mandarin, and Spanish!

Categories:

Contact Us

Let's Get Started on Your Case Together.
    • Please enter your first name.
    • Please enter your last name.
    • Please enter your email address.
      This isn't a valid email address.
    • This isn't a valid phone number.
    • Please make a selection.
    • Please enter a message.