Can I travel while my green card applications are pending?

Many green card applicants need to travel while their applications are pending with USCIS; when can I travel if I am applying for a green card?

This article talks about the legal advice given to green card applicants who need to travel out of the United States while they are waiting for their green card application (Form I-485) to become approved by US Citizenship & Immigration Services (USCIS). Many applicants don’t know that leaving the United States after filing of the green card application and later on return on a nonimmigrant visa or a visa waiver (ESTA). Re-entering the United States after the green card application is filed with USCIS can be seen as abandoning of the green card application because the traveler using nonimmigrant visa or visa waiver to enter the US do not have the intention to immigrate to the United States. This is why these visa (or ESTA) is called nonimmigrant visa (not immigrant).

What form should I file to apply for travel permission? A: Green card applicant should submit Form I-131 to apply for an advanced parole to allow them to travel freely.

The application form (Form I-131) is on USCIS’s website (http://www.uscis.gov) and it is also used for purposes other than applying for advanced parole, so please make sure you read the instruction and the form carefully while filling it out. The application fee is already included in the bundle Form I-485 fee, and there is no refund for the filing fee even if you don’t submit the application form.

What can I do if I cannot wait 90 days for the travel permission to arrive because I have an emergency and must travel soon?

USCIS local office accepts emergency appointments for advanced parole. If you hire a lawyer to help you get an emergency advanced parole, you will likely be required to go with the lawyer to USCIS to submit the request. USCIS can generally generate an emergency advanced parole immediately if the duty officer believes that there is a medical emergency, or emergency business meeting that might lead to severe financial loss if missed, or for humanitarian reason (to visit a sick close relative abroad). You should first gather evidence of the emergency, most likely a letter from the hospital or employer.

Will USCIS refund me the application fee for Form I-131 if I do not submit application, from the total of $1070? What if I don’t want to apply for an advanced parole?

No, USCIS will not refund the advanced parole application portion, so it would just be money down the drain.

Why can’t I use my existing visa to return to the United States if I am applying for the green card?

Most nonimmigrant visas are not “dual intent”. This means that the person using that visa can only intend to temporarily be in the United States and cannot have long term plans of staying in the United States. However, the H-1b and L visa are dual intent visas that allow the person who has the intention of immigrating to the United States to use those visa to come back to the US. It is important to note that ESTA (visa waiver), tourist visa, student visa, J-1 visa, TN visa, to name a few examples, are not dual intent visas. This means that after the green card application is filed, the applicant should wait for the advanced parole to arrive in the mail and should not use nonimmigrant visa (Except H and L) visa to re-enter the United States. Re-entering the US on nonimmigrant visa could mean that the applicant no longer wish to pursue the green card application. Customs officers can possibly refuse the applicant’s admission because of immigrant intent and ask the applicant to return to home country to wait for the immigrant visa.

Should you have additional questions about visa or immigration law, please feel free to click here to contact my office for a free consultation.

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