Travel Options / Risks for I-485 Filings in July 2007
Posted Jul 27, 2007
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The pro-immigrant community at large was delighted with the good news on July 17, 2007, that the U.S. Department of State (DOS) and the U.S. Citizenship and Immigration Services (USCIS) reversed their earlier decision to not accept I-485s. The DOS's reinstatement of the July 2007 Visa Bulletin and the USCIS announcement that it will accept I-485 cases filed under the July Visa Bulletin through August 17, 2007, have raised a number of questions, however. The American Immigration Lawyers Association (AILA) is making efforts to clarify many of these issues with the USCIS. While the USCIS published FAQs on July 23, 2007, in answer to some of the queries, they did not answer questions concerning travel, such as: What is the filing date of cases filed between July 1st and July 17, 2007 for folks to travel abroad? Is it safe to travel? Should they need to wait for the Advance Parole approval before departing the U.S.? These problems surrounding travel are addressed here for the benefit of MurthyDotCom and MurthyBulletin readers.
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What is the Date of Filing at USCIS to Travel Abroad?
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One of the key issues regarding travel abroad is that it is necessary to be in the U.S. when the I-485 is filed and received at the USCIS. For those who filed their I-485s before the July 17th announcement that the Visa Bulletin was being reinstated, mainly for the purpose of being a class member under the class action lawsuit, it is not clear what date will be considered the date of filing at the USCIS. These cases were received by the USCIS between July 1st and July 17, 2007. Will the actual date that the USCIS received the I-485 package be considered the date of filing? Or, since the revised announcement was issued only on July 17, 2007, will that be considered the date of filing? Is there a possibility that it will be some later date, as USCIS accepts the cases and issues receipt notices of cases that were held in limbo?
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There is a USCIS regulation governing the receipt date. It states, in sum, that applications are to be stamped to show the date and time of actual receipt, and that they are to be regarded as filed when stamped, if they are properly signed and accompanied by the proper filing fees. Since the USCIS does affix a date and time stamp on applications / petitions they receive, however, we hope that this will be considered the filing date. We await guidance from the USCIS on this matter.
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Can Use the H1B/H-4 or Other NIV Status to Reenter U.S.
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It would be logical to have the filing date as either the actual date received or, at least, the date the USCIS decided to accept the cases. Therefore, logically, travel after July 17th should not create problems with respect to the validity of the filing. This assumes, of course, that the applicant is maintaining a valid, dual-intent nonimmigrant visa (NIV) status, and will return to the U.S. in that NIV status. These dual-intent nonimmigrant statuses are H1B/H-4 and L-1/L-2. Such a person must also have the H1B/H-4 or L-1/L-2 NIV stamp in the passport to reenter the U.S. and obtain status at the port of entry. If the individual does not have a valid, unexpired visa stamp (except for Canadian citizens or those who are visa exempt), s/he must book a visa appointment at the U.S. consulate abroad, obtain the visa stamp in the passport, and show evidence of visa eligibility to reenter in that NIV status. Travel that does not meet these restrictions will be regarded as an abandonment of the I-485, unless an Advance Parole has been issued.
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Advance Parole Must be Approved before Departing U.S.
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If one does not have a valid NIV status and cannot enter as a nonimmigrant, and s/he wishes to travel abroad and reenter the U.S. based on the I-485 filing, advance parole (AP) must be approved before the person departs the U.S. The approval of AP is required before departing the U.S. to avoid having the I-485 considered to be abandoned under law. Another family member cannot simply carry the AP approval abroad, since the CBP Inspector can deny entry to one who is entering on AP that was approved after s/he departed the U.S.
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If Possible, Avoid Travel at this Time!
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Since logic has not prevailed of late, it may be best to use caution. The cautious individual will wait for the I-485 receipt notice - or at least wait until the USCIS cashes the filing fee checks (which may clear the bank before the receipt notice is issued). Those who do not absolutely have to travel may want to remain in the U.S. in valid NIV status. In this time of uncertainty, it may be better to be safe than sorry, if travel abroad can be avoided.
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Conclusion
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We will provide further information to MurthyDotCom and MurthyBulletin readers if the USCIS clarifies the matter regarding the receipt date of cases filed in early July, or if we begin receiving receipt notices for these and other cases. It is expected, however, that the issuance of receipt notices could be substantially delayed due to the unprecedented volume of I-485 cases expected to be filed under the terms of the July 2007 Visa Bulletin.