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H1B Travel while I-485 is Pending

Traveling On an H-1B

Many H-1B visa holders who have filed I-485 applications are finding difficulty identifying the proper procedure of reentry into the United States after traveling abroad. However there are two possibilities that can occur depending on the specific visa status. The foreign national has the option to either reenter the country through Advance Parole (AP) or a valid H-1B visa stamp. However, there are major differences between the two.

H-1B Visa Background

The H-1B is a very versatile visa and is sought after because of its relatively low requirements and the variety of benefits it brings. The ability to stay in the U.S. for six years, port your visa status from one job to another, work full or part time, and even work for several employers at once is unmatched by other nonimmigrant visas. Another major advantage is the ability to travel in and out of the U.S. under H-1B status. However, there are stipulations once you file for adjustment of status.

Adjusting Your Status

If you are in the U.S. under a nonimmigrant status (like the H-1B), then you can file the I-485 to adjust your status from nonimmigrant to immigrant status. However, just because your I-140 was approved, doesn’t mean that the I-485 is just a formality. Many people think that they can act as though they already have a green card while their I-485 is pending. In reality, your I-485 is open to being denied, which would deny you a green card.

For this reason, you should exercise caution when traveling under a nonimmigrant status. If you don’t have Advance Parole, you may cause your adjustment of status application to be void by leaving the U.S.

What is Advance Parole?

There may be a circumstance where you need to travel outside of the U.S. If your H-1B visa has expired or your I-94 departure date has been passed, you will not be able to return to the U.S. afterward. Advance Parole is the form that allows those without valid visas to come back to the country after having been abroad. It does not count as a visa or a re-entry permit, but rather as a one-time exception to the rule. You can file for Advance Parole by submitting an I-131 form to the USCIS.

You must make sure that the I-131 is fully approved before departing the country. Otherwise, you risk having your I-485 adjustment of status application automatically denied. If your Advance Parole is approved, you will receive an I-512, which will allow you to leave and return without jeopardizing your adjustment of status. Keep in mind that you will still be inspected at customs, so Advance Parole does not absolutely guarantee that you will be permitted to return.

It is important to note what conditions the USCIS places on your Advance Parole. Some I-512 forms are issued to allow for multiple re-entries into the U.S. while others are issued for only one single re-entry. These decisions are on a case-by-case basis up to the discretion of the USCIS.

It is possible to have your I-131 expedited if you have extenuating circumstances. If these circumstances constitute an emergency, you can request for an emergency Advance Parole.

Nonimmigrant visa holders traveling outside the United States with a pending AOS

If the foreign national holds a nonimmigrant visa and is filing for an adjustment of status, it is mandated not to travel unless he/she has an Advance Parole. The Adjustment of Status (AOS) petition is the final stage in obtaining a United States green card. As a result, it takes longer to process through the USCIS. During this critical time of processing, the petitioner is advised to avoid any of the following actions which would cause the USCIS to believe the petition has been abandoned.

Actions which can lead to Adjustment of Status Petition Abandonment:

  • Does not respond to USCIS requests
  • Does not appear at scheduled interviews
  • Does not provide fingerprints/biometrics
  • Travels outside the United States without obtaining an Advance Parole.

If the AOS has been deemed “abandoned” and the petitioner wishes to stay in the United States, the petitioner will be required to file the proper documentation in order to maintain an authorized nonimmigrant status.

Due to the high risks, AOS petitioners who wish to travel are highly advised to obtain Advance Parole (AP) before traveling outside the United States. Failure to receive the AP before traveling will result in AOS petition abandonment.

H-1B holders traveling outside the United States with pending AOS

If the applicant has a valid H-1B visa and possesses a pending AOS application, it is not mandated to obtain an Advance Parole to reenter the United States. Actually, if a H-1B visa holder reenters the United States with the Advance Parole, his/her H-1B status will be terminated. The foreign national would then be labeled as a “parolee.” A “parolee” is able to continue working under the H-1B employer, however, he/she will not be able to obtain valid H-1B status until the employer has filed for extension and had the application approved on his/her behalf. Though, this condition is only valid if “the alien’s H-1B or L-1 employment authorization would not have expired had the alien not left and returned under advance parole.” To avoid complications and maintain H-1B status, the visa holder must reenter with the H-1B visa and meet the following requirements:

  • Hold a valid H-1B entry visa on his/her passport
  • Maintain the same H-1B sponsoring employer (he/she cannot change employers)

If the foreign national under H-1B status has reentered under AP and the AOS (Form I-485) has been denied, the foreign national is considered out of status.

We understand how this process can be confusing. If you have any additional questions please contact our immigration lawyers. Our immigration attorneys are able to assist and advise clients who are in complicated situations relating to Advance Parole, Adjustment of Status, and H-1B.

How Our Immigration Attorneys Can Help

Understanding the specifics of immigration law, such as whether or not you can or should travel on an H-1B while your I-485 is pending, is something that is best left to the experts. You never want to place yourself in a position where you might jeopardize your status. To get a better grasp of what effect traveling during the I-485 pending period will have on your case, seek the help of a qualified immigration attorney.

Here at Immi-USA, our immigration lawyers have decades of experience handling the ins and outs of the H-1B visa. With hundreds of successful cases under our belts, we can help guide you along the best path that will protect the investment you’ve made in your visa. To get in touch with one of our attorneys, you can fill out this contact form and schedule your consultation today.