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Traveling Out of the United States While Immigrant Application Pending

by Hamid R. Kashani, Attorney at Law
Nov 07, 2018 (last modified Sep 30, 2019)

Can I travel outside of the United States while a petition for my immigrant classification is pending?

If you are the beneficiary of an immigrant classification petition (e.g., I-130, I-140, I-360), which is pending before the USCIS or if your prospective employer is pursuing a labor certification process to support such a petition for you, and your nonimmigrant stay here is otherwise authorized, you should not leave the country. If you leave, you may not be able to get back (see exceptions below).

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If you leave the country, you cannot get back on most nonimmigrant visas, because most of those visas (e.g., visitor or student visas, among others) require you to have a residence overseas which you have no intention of abandoning. That requirement conflicts with the fact that you are the beneficiary of an immigrant classification petition as a part of your efforts to immigrate to the United States. Therefore, if you leave, you may not be able to obtain a new nonimmigrant visa to come back and you may not be admitted into the country on an existing nonimmigrant visa.

If you already hold an L or H-1B nonimmigrant visa, you are allowed to have dual intent, which means that you can be on a nonimmigrant visa and at the same time intend to immigrate here. In that situation, the filing of an immigrant classification petition by your prospective employer would not prevent you from leaving the country and coming back on the same nonimmigrant visa (assuming it is still valid).

Can I travel outside of the United States while my Application for Adjustment of Status is pending?

Yes, if you request permission to travel, by applying for advance parole. Otherwise, if you leave the country while your application for adjustment of status is pending, you will be deemed to have abandoned the application.

You may file a request for advance parole (Form I-131) together with your Application for Adjustment of Status. There is no additional application fee for filing Form I-131 with your Application for Adjustment of Status or while your adjustment application is pending.

Under some circumstances, an individual returning from a trip to the United States territories or possessions (such as Guam, Puerto Rico, U.S. Virgin Islands, American Samoa, Swains Island and the Commonwealth of the Northern Mariana Islands) is considered to be making an entry into the United States. If you plan to travel to such destinations without an advance parole, please consult an attorney in advance. See USCIS and the U.S. Customs and Border Patrol's statements regarding traveling outside of the 50 states of the United States.

If the USCIS denies your underlying application, such as the Application for Adjustment of Status, while you are travelling outside of the United States, there is no guarantee that you will be readmitted. You should limit such travels to urgent matters and consult an attorney before you leave the country while you have a pending application for immigration benefits.

What should I do if I leave the United States and go to my home country while I wait for the approval of my Application for Adjustment of Status?

If you wish to leave the United States and move to your home country while waiting for a decision on your adjustment of status application, you must notify the USCIS of your decision by filing Form I-824 with the USCIS office which approved the underlying classification petition, to send your file to the National Visa Center for consular processing.

Can I leave the United States after my Application for Adjustment of Status is approved but before I receive my green card?

Yes, but remember that the notice of approval you receive from the USCIS is not valid for reentry into the United States. If you plan to leave the United States before receiving your green card, make an appointment with your local immigration office to have your passport stamped with the notation that you have a green card. You can make an appointment with your local immigration office through the USCIS' Infopass Web Site.


 

Related Topics:

Consular Processing

Adjustment of Status

Priority Date & Visa Availability

Employment While Application Pending

Consequences of Overstaying

Derivative Beneficiaries

Child Status Protection Act (CSPA)

Change of Address Requirement

 

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