USCIS Revises Policy on Travel While AP is Pending

The policy regarding overseas travel, while an I-131 application for advance parole (AP) is pending, has been updated by the U.S. Citizenship and Immigration Services (USCIS). Effective immediately, the USCIS will not deny a pending I-131 renewal based on overseas travel by the applicant, as long as that individual has an unexpired AP document that remains valid through her/his return date to the United States. However, if a person with a pending I-131 application leaves the U.S. without a valid AP document, or if the AP document expires during the trip abroad, the pending I-131 will be denied.

Historically, Policy for Travel with Pending I-485 also Applied to Travel with Pending I-131

Generally, if an applicant for adjustment of status (form I-485) departs the U.S. while the application is still pending, the I-485 is considered abandoned and is denied. However, if the I-485 applicant is in valid L-1, L-2, H1B, H-4, K-3, K-4, or V nonimmigrant status, and remains eligible for that status upon returning to the U.S., the I-485 application is not considered to be abandoned. Similarly, if an I-485 applicant is issued an AP document prior to departing the U.S., which remains valid through the date the applicant returns from the overseas trip, the I-485 generally will not be impacted.

If an I-131 applicant travels based on a qualifying status (e.g., H1B, L-1) or an unexpired AP document, such travel typically will not impact the pending I-131. This abruptly changed in 2017, when the USCIS implemented a blanket policy of denying pending I-131 applications based on overseas travel. This generally did not impact any corresponding pending I-485, but did inconvenience many stakeholders unnecessarily.

Travel While I-485 and I-131 Pending

Ordinarily, if an applicant for adjustment of status (form I-485) departs the United States while the application is still pending, the I-485 is considered abandoned and therefore is denied. However, overseas travel typically will not cause the USCIS to deny a pending I-485 application if the applicant obtains a valid, unexpired AP document prior departing the U.S. Similarly, if the AOS applicant is in lawful L-1, L-2, H1B, H-4, K-3, K-4, or V status, and remains eligible for that status upon returning to the U.S., the USCIS does not consider the I-485 application to be abandoned, regardless of whether the individual has an AP document.

Historically, the USCIS essentially employed this same policy to one who traveled with a pending I-131 application. If a person with a pending I-131 application had an existing AP document that still was valid, or was in a qualifying status (particularly a dual intent status like L-1 or H1B), that individual generally could travel abroad without impacting the pending I-131. If the AP document was issued while the person was abroad, it still could not be used to reenter the U.S. at that time (i.e., the AP must be issued prior to departing the U.S. to be valid as a travel document for a particular trip). However, the individual still could return using the existing, unexpired AP document or the appropriate visa (e.g., L-1, H1B), and then use the newly issued AP to reenter the U.S. during future travel.

Change in Policy

Without any warning, in 2017, the USCIS changed its policy regarding travel with a pending I-131 application. Suddenly, the USCIS took the position that, if an I-131 application is pending, the application for AP will be denied, regardless of whether the applicant can return in a qualifying status. So, while the travel would not necessarily impact the pending I-485, this policy change made obtaining an AP document more challenging. Further detail on this policy shift is available in the MurthyDotCom NewsBrief, USCIS Denying Advance Parole Applications Based on Overseas Travel (10.Aug.2017).

Updated Policy

A USCIS webpage on emergency travel has been updated to lay out the new policy. “If you file form I-131 … to request an advance parole document and depart the United States without possession of an advance parole document that is valid for the entire time you are abroad, your form I-131 will be considered abandoned. At times, an individual may have an approved advance parole document while a second one is pending. Individuals may travel on the approved advanced parole document, provided the document is valid for the entire duration of the time abroad. The pending form I-131 will not be considered abandoned in this situation.”

Again, the policy regarding pending I-485s remains unchanged. A pending I-485 generally will not be impacted by overseas travel, as long as the individual either is in lawful L-1, L-2, H1B, H-4, K-3, K-4, or V status, and remains eligible for that status upon returning to the U.S., or has an AP document that remains valid through his/her date of return to the U.S. A pending I-131, on the other hand, will be denied if one travels abroad without a valid AP, as described above.

Conclusion

It is unfortunate that the USCIS is continuing to deny I-131 applications for those who travel abroad in qualifying statuses. Still, at least the updated policy does allow stakeholders with valid AP to travel without jeopardizing the pending I-131 applications.

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