One of the questions I heard the most over the years was: can I travel abroad while waiting to hear from USCIS? Indeed, traveling during the green card process is a hot topic: Can I go to India while waiting to hear back from USCIS about my I-140? Will I have issues if I leave the country before the adjustment of status is completed? Like in most cases for the green card process, there is no easy and simple answer.
Generally, you can travel and re-enter the US if you have a valid H-1B visa or any other visa with dual intent. However, for other visas, the situation may put your permanent residency application in jeopardy.
Traveling while I-140 is pending
The I-140 filing is the first step in the EB-2 NIW process. Once you file it, your green card petition journey begins. Can you leave the US while the I-140 is still pending? It depends what is your current status.
Dual intent visas (L and H visas)
If you are on an L-A, L-1B, H-1B, or H-4 visa, you are in the best situation. This is because L and H visas are dual intent visas. In other words, the US does not require you to show non-immigrant intent while entering or re-entering the country. Therefore, if you are a holder of a valid L or H visa, the I-140 petition does not have any impact on your H visa or your ability to re-enter the country in H status.
O-1 visa: similar case to H visas
The O-1 visa allows certain individuals with extraordinary abilities to work in the United States. On one hand, this is a non-immigrant visa and therefore temporary in nature. On the other hand it does not require the applicant to have a residence to go back to.
While there is some conflicting information out there about the O-1 visa dual intent classification, the U.S Department of State’s Foreign Affairs Manual is clear about it: “Under 8 CFR 214.2(o)(13), an intent to remain temporarily in the United States is a requirement for O-1 classification. However, an applicant for an O-1 visa does not have to have a residence abroad which they do not intend to abandon. Further, as explained in 9 FAM 402.13-5(B) above, “dual intent” is permissible for O-1 visa holders. These same standards apply to O-3s accompanying the O-1 principal applicant.” 9 FAM 402.13-10
In conclusion, the United States government considers O-1 visas as dual intent visas. Filing for a green card cannot be used to reject a person when re-entering the country.
Non-immigrant intent visas (J, F, B visas)
However, if you are on an B-1, B-2, J-1, J-2, F-1, F-1 in OPT, or F-2 visas, you are generally not advised to travel. The reason is simple: these visa categories are of non-immigrant intent. Thus, the US considers you have a residence abroad where you intend to return to. Filing for I-140 does not affect your F or J status but it may impact your ability to re-enter the country in that status. The reason for this is that it may be difficult to establish non-immigrant intent if an I-140 had been filed. You may be rejected at the port of entry (for example, at the airport by the Department of Homeland Security officer). This is why it may be wise to put a pause on the travel plans or consult an immigration lawyer before taking that trip.
Traveling while I-485 is pending
Using Advance Parole to Travel: pros and cons
Yet, using Advance Parole may be the only way for someone already out of status to travel internationally. In addition, it may be an option for those who think are at risk of getting stuck abroad. For example, due to issues at US consulates during H-1B visa processing. Or if a person on an F or J visas absolutely needs to travel (below we explain why they should not attempt to re-enter using their visas). In these cases, re-entering under Advance Parole may be an interesting option to consider. Consulting with a specialized attorney may be the best choice in these complex cases.
The type of visa matters when it comes to travel with I-485 pending
Dual intent visas (L and H visas)
Similar to the I-140 step, the type of visa you hold matters when it comes to traveling while waiting for I-485. Once again, re-entering the US as an L or H visa holder should be no problem with a pending or approved I-485. Because L and H visas confer dual intent status, you should be OK going back home and re-entering the United States as long as your visa is valid.
Unfortunately, an exception to this favorable condition would be someone that used the EAD card from the green card process to change jobs. In that case, the L or H visa holder and dependents may travel and re-enter the country under Advance Parole. Unfortunately, at that point, they would have lost L or H status and if the green card petition fails, they may find themselves out of status.
O-1 visa holders should consult with a legal advisor before traveling with adjustment of status pending. There is published information that indicates that the US will consider that the O visa holder is abandoning their I-485 when travelling. The solution to this problem may be travelling under Advance Parole.
Nonimmigrant intent visas
However, beneficiaries of B, J, or F visas (including OPT holders) should generally not travel while waiting for their I-485 adjustment of status. This is because the US expects them to have non-immigrant intent. While filing the I-485 does not impact the beneficiary’s J or F status, they may face issues when trying to re-enter the US. Even though they could use Advance Parole to return to the USA, this option should be avoided if possible. If the US denies their green card application, they could find themselves with an out-of-status problem.
Conclusions: traveling during green card process
Traveling during the green card process may not be advisable depending on the situation. Generally, people under a valid visa with dual intent should have no issues. However, individuals under visas such as F-1 or J-1 can face problems when re-entering the United States.
Please note that the information provided in this blog post, as on the rest of the website, is general and your specific case may be different than the ones we describe here.