Adjustment of Status and Travel : Your Questions Answered!

The following questions and answers are based on those frequently posed to the attorneys at the Murthy Law Firm. We are sharing these to clarify information of concern to our clients and the entire immigrant community. MurthyDotCom and MurthyBulletin readers are reminded that these responses are generic and specific facts or circumstances for a particular person or situation may make the response inapplicable in a particular case or require a different course of action or strategy. There is no substitute for a consultation with a knowledgeable and experienced immigration law attorney to ensure compliance with complex and constantly changing immigration law, regulations, and policy guidance. [See our MurthyDotCom article, One Simple Question, for more explanation.]

Question 1. I filed my I-485 Application to Adjust Status last month. I am currently in H1B (or H-4, L-1, or L-2) status. Do I need Advance Parole (AP) to travel?

In most cases, a person who is in valid H1B or L-1 status (or H-4 or L-2 dependent status), who has a valid visa in the appropriate category stamped in the passport, does not need AP to return to the United States. The H1B and L-1 allow for dual intent, so there is no abandonment of the pending I-485 by departing before the AP is issued. We generally recommend filing for Advance Parole and waiting in the U.S. until it is approved before departing the U.S. for several reasons:

First, if one does not have the appropriate visa stamped in the passport, it avoids the need to obtain a visa at the consulate in order to return to the U.S. While it is preferable that one maintains her/his nonimmigrant status and avoid using AP, if possible, it can be helpful if there is not sufficient time to obtain a visa stamp abroad; or if there is a delay in visa issuance. For many, it may be difficult or inconvenient to reserve a visa appointment and wait for an interview date at a U.S. consulate abroad.

Second, if there is any chance that the H1B or L-1 employment may be terminated unexpectedly at any time in the future, then it would not be permissible to reenter the U.S. on the H1B or L-1 petition approved for the terminated employer, and it would be necessary to use Advance Parole.

Question 2. How long does it take to receive Advance Parole?

At the time of this writing, according to the U.S. Citizenship and Immigration Services (USCIS) service centers’ postings, applications made for Advance Parole in March and April 2007 are currently having their cases adjudicated for Advance Parole. The online posting of processing dates for each USCIS service centers is accessible through MurthyDotCom.

Because of the unprecedented number of filings during July and August 2007, this timeframe is likely to increase; typically, APs take anywhere from 60 to 120 days.

Question 3. May I apply for AP when I am already outside of the U.S.?

As suggested by the name “Advance Parole,” it is necessary to request permission to travel “in advance,” i.e. before one departs the United States. Therefore, AP should be filed before taking a trip outside of the U.S.

Question 4. Should I wait for the approval of my application for AP before I travel?

Under current regulations, an AP document cannot be granted to a person outside of the U.S. One hears about people who did not wait for the Advance Parole document to be issued and had someone send it to them while they were outside of the United States. This is not the accepted procedure, and if the person left without having AP or without having H1B, H-4, L-1 or L-2 status, s/he is deemed to have abandoned the I-485 Adjustment of Status application.

While there may be some people who were allowed reentry into the U.S., either in error or on humanitarian grounds, it is risky to depart before the AP is issued. There are provisions for situations in which a person has the AP and requests an extension prior to departure, then does not rely on the AP extension to reenter the U.S., but uses it for a future trip abroad. This situation is different from leaving without having AP at all.

Question 5. I have not held any immigration status for over six months. My lawyer told me I was “unlawfully present,” since I do not have a valid I-94. I was able to file my I-485, Application for Adjustment of Status, however, based on a special provision in the law. I had to pay an extra penalty filing fee. I have not seen my family in many years. Should I apply for AP to travel to my home country while my I-485 is pending?

There is a big difference between being out of status and being unlawfully present under U.S. immigration law. If one is out of status for over 180 days, and not protected under section 245(i), s/he is not entitled to obtain the I-485 approval under law. [Search MurthyDotCom for articles on the subject of 245(i) filings.]

One who was granted an AP document after s/he was unlawfully present in the U.S. for more than 180 days, will be subject to either a three- or ten-year bar to admission. The AP does not protect one from this consequence. Thus, even if one is allowed to return on the AP, s/he potentially will be unable to adjust status to permanent residence. Such travel is not advisable.

Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.