The American Immigration Lawyers Association (AILA), of which we are a member firm, released an important update to advise attorneys on a new USCIS practice that is apparently new government policy. There were no official prior announcements of this policy shift and this will impact certain applicants who seek a green card and wish to travel while an Advance Parole application is pending.
This new practice by USCIS may affect your plans for overseas travel if you have a pending Adjustment of Status application or will soon file your application. USCIS has started to deny pending Advance Parole applications where the applicant travels abroad while the application is pending. USCIS is deeming such applications as abandoned for their justification in issuing denial. As per our usual practice, we advise those in TN, J-1, F-1, E-2, E-3, H-1B1 or O-1 status (and respective dependent visas) to not travel until the Advance Parole document has been approved when we first file an AOS application. This new USCIS practice will not affect our recommendations for those statuses. However, this is quite a change for those currently in H-1B or L-1 status (along with dependent H-4 and L-2 statuses) or any client seeking to renew an AP. Even individuals who file in the period six months in advance of the AP expiration must remain stateside until the case is approved or face denial.
The Advance Parole document is most commonly applied for during the Adjustment of Status application (also called the “Green Card” application or “AOS”) along with an application for an Employment Authorization Document (EAD) creating the EAD/AP combo card. Although regulations allow those in H and L status to travel freely during the pendency of their Adjustment of Status applications, this new USCIS practice will now require us to advise all statuses to not plan for immediate travel once the Adjustment of Status application has been filed with USCIS until the Advance Parole document is issued (which could be upwards of six months). We want to emphasize that for those in H or L status with pending Adjustment of Status applications who have traveled prior to the Advance Parole being issued, your Advance Parole application may receive a denial. However, please know that this will not affect the pending Adjustment of Status application.
The biggest inconvenience of this new policy will affect those in H and L statuses or anyone seeking to renew an AP document. We understand that a need for travel can come up prior to Advance Parole approval. If this is the case for you, please let us know immediately. In the case of an H-1B or L visa holder (and their respective dependent visas), you are allowed to travel during the pendency of your Adjustment of Status application without the need for an AP. However, please double check the validity of your visa before leaving the U.S. to ensure that you will be able to re-enter the U.S. in H or L status without needing a new visa. For those individuals who are seeking to extend an AP document, we’ll need clients to plan a travel-free window of up to six months to ensure that when we file the request, it can be approved without possibility of denial as a result of travel. We also advise checking any newly issued EAD/AP combo cards to ensure the card is not a stand-alone employment authorization card (there should be a notation on the card saying it “Serves as I-512 Advance Parole”).
Q: I am in H-1B* status with a pending Adjustment of Status application. I traveled before my advance parole was issued. Will my Advance Parole be denied?
A: Based on USCIS new practice, there is a high likelihood that your Advance Parole application will be denied. If USCIS follows this new policy and notices that you have traveled, the AP should be denied. Please note this will not affect your Adjustment of Status application. This is the same scenario for your dependents in H-4 status.
Q: My family and I have L* visas and we are working with your firm to soon file our I-140 and Adjustment of Status applications. What will happen if we need to travel in the next two months?
A: In the past, we would have said that you could travel as soon as the I-140 and Adjustment of Status applications are filed with USCIS. The L visa allows for someone in nonimmigrant status to have immigrant intent (this is known as dual intent), meaning you can travel outside of the U.S. while the Adjustment of Status application is pending without abandoning it. Your family is still allowed to travel in L status after the Adjustment of Status application is pending; however, we highly recommend waiting until your Advance Parole document is issued before traveling. We understand that some travel cannot be postponed and as long as you maintain your L status, then you are not restricted from traveling before the Advance Parole is issued. Please be mindful of your status expiration to make sure that you will be able to return to the U.S. in L status. If you do decide to travel and the Advance Parole application is denied, you will have the option of reapplying for the Advance Parole document upon your return to the U.S. Alternatively, we could wait to file your AP request for a date after you have returned. For those APs filed after the main filing, we will charge an additional fee for the separate filing.
Q: I was in TN** status when my Adjustment of Status application was filed. I am waiting for my Advance Parole document to be issued so that I can travel. Does this new USCIS practice affect me?
A: This new practice does not immediately affect you (we always advise you must remain in the U.S. until the AP is issued); however, this may affect any renewal Advance Parole applications we file for you in the future. The TN status does not allow for dual intent, and we have always advised clients to remain in the U.S. once the I-140 petition and Adjustment of Status application are filed with USCIS until the Advance Parole document has been issued. Once the EAD/AP combo card is issued, you are then free to travel during the validity period of the Advance Parole document. We will now advise that you should not travel once your renewal of the Advance Parole extension is pending with USCIS. There is potential that with USCIS’s new practice, USCIS will begin issuing the EAD/AP combo cards for two years, which would help to prevent the need to apply for an extension (as in many cases the Adjustment of Status will be approved prior to an EAD/AP extension being necessary).
Q: I was in F-1** status when my Adjustment of Status application was filed. I have received my EAD/AP combo card, which is expiring soon and have a pending extension. Can I travel?
A: We highly recommend that you not travel until the extension has been approved. If you need to travel for an emergency, be aware that you should return to the U.S. prior to the current EAD/AP’s expiration. Please also note that upon your return, your pending AP extension will likely be denied, and we will have to reapply for the Advance Parole document.
Q: I just received my EAD/AP combo card in the mail. How do I know if both the EAD and the AP have been issued?
A: Please check your card carefully to see if the following words appear at the bottom of the card: “Serves as I-512 Advance Parole.” If these words do not appear on your card, then USCIS has issued the Employment Authorization Document only and not the combo with Advance Parole and you will separately need to apply for AP again. Note: we should receive confirmation of the denial of the application as counsel.
Q: My Advance Parole was denied. Can I reapply?
A: Yes! We would apply a second time and we would advise you not travel until the Advance Parole has been issued.
*This scenario applies to H-1B, H-2, L-1A, L-1B, and L-2 visas. Please note this does not apply to H-1B1 status.
**This scenario applies to TN, J, F, H-1B1, E-2, E-3, and O-1 visas.
~This newsletter/memo is provided for informational and discussion purposes only. It does not act as a substitute for direct legal contact on an individual basis ~