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Travel During I-485 Adjustment of Status Period Jian Joe Zhou, Attorney at Law An I-485 adjustment of status application is the final step in the immigration process for aliens who are physically in the U.S. in a valid non-immigrant status. By submitting the application, an alien requests an adjustment to permanent resident status without having to leave the U.S. Except under certain conditions, an I-485 applicant abandons his/her application if he/she leaves the U.S. with an application pending. 1. Travel using Advance Parole (AP) documents. An Advance Parole (AP) document may be filed along with an adjustment of status application or during the pendency of the case. AP grants alien I-485 applicants freedom to leave the U.S. without abandoning a pending I-485, as well as the right to reenter the U.S. to resume the adjustment of status process. Applicants should obtain an AP prior to leaving the U.S. and return using the same approved AP document. When reentering using advance parole, an applicant’s I-94 forms will be stamped as “Parolee.” Regardless of the expiration date annotated on I-94 by the immigration officer at the port of entry, parolee status remains valid until the I-485 application is adjudicated. Nevertheless, using AP with a pending adjustment of status application has downsides. In general, a parolee must obtain an employment authorization card (EAD) to work. Additionally, in general, parolees cannot change back to a non-immigrant status in the U.S., except for the H and L situation discussed below. To provide an example, consider an alien in F-1 status working post-graduation using OPT. If the alien files an I-485 application and wants to travel, without receiving an AP before leaving the country, the alien risks abandoning his/her application. If the applicant obtains an AP before exiting, the applicant will be in parolee status upon reentry and will require an EAD card to resume employment. This is important, because working without authorization may lead to the denial of the I-485 application. On the other hand, using their previously approved status, H-1 and L-1 status holders who travel using an AP and return to the same employer do not need EAD to work upon reentry, so long as the H-1B approval notice is still within the valid period. However, an applicant reentering the U.S. using AP will not return to the U.S. in his/her previous H or L status. The applicant may, however, resume H or L status through an H or L status extension or transfer petition. This exception also applies to H-4 and L-2 derivative family members. Finally, parolee status is only valid while an applicant’s I-485 is pending; an applicant becomes out of status following a denial. So, we recommend those I-485 applicants maintain or change back to H and L status as soon as possible upon returning to the U.S. with AP, if they meet the requirements. 2. Travel Using an H or L Visa H and L status holders who travel outside the U.S. during the adjustment of status process without using advance parole do not abandon their application provided that they: (1) hold valid H or L status before leaving the U.S; (2) reenter the U.S. with a valid H or L visa stamp; and, (3) return to the same H or L employer. In this situation, an applicant resumes his/her H or L status upon reentry into the U.S. and also maintains his/her I-485 adjustment of status case. In the event that the applicant’s I-485 is denied, so long as his/her H or L status remains valid, he/she will not be out of status and can continue working for the same sponsoring employer. He/she will also be eligible to change to another non-immigrant status without jeopardizing his/her application. Therefore, we always encourage I-485 applicants to get H or L visas for reentry if possible, and keep AP as a backup in case of an H or L visa application delay at U.S. consulates overseas. Special Announcement: The immigration process is often difficult and confusing. Therefore, experienced attorneys at Zhang & Associates would like to extend an invitation to our free immigration seminars. We are holding seminars on Friday, November 7th and Saturday, November 8th in our Houston, Chicago, and New York offices. For more information about times, locations, and RSVP information, please visit our website at: Free Immigration Seminars in Houston, Chicago, and New York on Friday, November 7th and Saturday, November 8th. ------ (11/07/2008) For more immigration news, please click here |
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