Effect of Travel on Pending Immigration Applications
August 03, 2011
The effect of international travel on a pending application or petition with the USCIS is a complicated matter that cannot be summed up in any single rule. Anyone with an immigration application should examine the possible effects of travel because it may have various consequences, such as being denied admission at the port of entry or being barred from reentering the U.S. for a number of years.
If the alien has a pending petition for extension of status, foreign travel is generally permitted. A Legacy INS rule stated that Service policy did not preclude an alien from traveling outside of the U.S. while a request for an extension of temporary stay is pending.
It is also important to note that USCIS follows an informal rule known as the “last action rule”. This means that the last action taken by the USCIS is the controlling action in determining a person’s status.
In instances where the extension of temporary stay is still pending but the foreign national has a currently valid petition and visa, such as in H-1B extensions, he/she may re-enter the U.S. but the I-94 to be issued upon reentry will list the expiration date of the initial petition.
If the extension of stay is approved while the foreign national is abroad, two things may happen. If the foreign national returns with the approval notice for the extension, he/she should receive an I-94 with the expiration date matching that of the extension approval.
If the extension is approved but the foreign national does not have the approval notice upon reentry, the last action rule tells us that the last action was the extension approval. However, since the alien only has the visa from the initial petition, the I-94 card will have an expiration that matches that visa. This scenario results in the foreign national having two I-94 cards, the one that comes with the approval notice and the one issued upon admission.
On the other hand, if one’s current petition and visa have expired and the petition for extension of stay is still pending, the foreign national may not return in the requested status until the extension is approved and the I-797 approval notice is issued. As a rule, a valid passport and visa are required before one may enter the U.S. The foreign national must wait for the approval and obtain a new visa from outside the United States.
If the pending application is for a change of status, such as from B1 to H-1B, the foreign national should refrain from traveling. The general rule is that travel during a change of status application constitutes abandonment of that application. If the USCIS learns that the applicant left the U.S. during the pendency of the application, it will be denied and the foreign national will be required to apply for a new visa abroad. It is not even advisable to travel even after the change of status application is approved but before the effective date.
Furthermore, in case of travel while a change of status is pending but after expiration of the I-94, the foreign national’s application will be abandoned but there are also other possible consequences to consider. For instance, a departure from the U.S. triggers the three-year or ten-year bar due to unlawful presence. If the change of status application filed before the alien left the U.S. was non-frivolous, timely, and the alien did not engage in unauthorized employment, it is possible that the bar may not be triggered.
If the foreign national remains in the U.S. after his/her I-94 has expired but has a pending change of status request, unlawful presence is “tolled” until the decision on the change of status application is issued. Although the alien is no longer in authorized or lawful status and is subject to removal, he/she is in a period of stay authorized by the Secretary of Homeland Security for purposes of counting the days of unlawful presence.
Finally if the pending application is for adjustment of status, foreign travel generally results in the abandonment of the application. That is why the foreign national must first obtain permission to travel in the form of advance parole. Some classes do not need advance parole to travel, however, such as H-1B, L-1, and K-3/K-4 visa holders.
Even when advance parole is obtained, there is no guarantee of readmission. If an adjustment application is denied and the foreign national does not have a valid nonimmigrant status, he/she may not only be denied entry but may also be placed in removal proceedings.
More importantly, if the foreign national incurred unlawful presence for more than 180 days, the 3 and 10 year unlawful presence bars would have been triggered already, making the alien inadmissible and ineligible for adjustment of status, except in cases where a waiver is available.