The regulations of Citizenship and Immigration Service at 8 CFR 245.2(a)(4) address the situation of an applicant for Adjustment of Status who departs from the U.S. after filing the I-485. The regulations provide that the Applicant is considered to have abandoned the I-485 application UNLESS
- He/she was ISSUED an Advance Parole document prior to departure and is paroled into the U.S. upon reentry on the basis of that document
- He/she is in lawful H-1 or L-1 status at the time of departure, and
- Remains eligible for H-1 or L-1 status upon return with the same employer, and
- Is in possession of a valid H-1 or L-1 visa (unless exempt, e.g. as a Canadian citizen),
- Is in possession of the original Form I-797 Receipt Notice for the I-485 application.
It is this last point that is problematic for many of our clients since it is impossible to know how long it will take for the Immigration Service to issue a receipt. In recent months it has sometimes taken four to six weeks, but with the large influx of applications in July it may well take longer. The following factors should be taken into consideration before planning international travel after filing for Adjustment of Status:
Unlike the rules governing the use of an Advance Parole document, the regulation does NOT specify that the receipt must be issued prior to departure-only that it be presented at time of reentry. An individual planning a lengthy trip might be reasonably confident that the receipt will be available prior to returning to the U.S.
Traveling abroad before obtaining the receipt raises at least the slight possibility that the application will be rejected and returned without being receipted into the system. Reasons for rejection could include missing critical initial evidence, failing to properly sign the form, or presenting an incorrect filing fee or an unsigned check. In addition, the receipt could be issued and lost in the mail, and at the present time there is no procedure available to obtain a duplicate copy from the Immigration Service.
We are aware that in many, if not most cases, Immigration Officers at the Port of Entry have not been asking travelers to present the Form I-797 receipt. Nevertheless, the regulation as it stands is clear and potential travelers ought to be aware of it.
The same principles apply to H-4 and L-2 dependant family members.
In short, traveling abroad without an Advance Parole document in hand, or without meeting all the requirements for H-1 and L-1 visa holders listed above, presents some degree of unavoidable risk.