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june 20‚ 2011
Impact of Advancement of the Employment-Based Second
Preference Numbers for China and India:
What if a Pending I-485 Adjustment of Status
Application [to U.S. Permanent Resident] is Approved While the Applicant is
Temporarily Traveling Abroad?
The U.S. State Department has indicated that due to the low
demand this year for immigrant visas in the employment-based First
Preference (EB-1) category (for persons of extraordinary ability,
outstanding researchers or professors, and multinational managers and
executives), unused immigrant visas will flow down into the Second
Preference Immigrant Visa (EB-2) category which will be used to
advance the backlogged EB-2 categories for China and India. The Second
Preference category is for persons filling positions that require either an
advanced degree or a bachelor’s degree and at least five years of
experience. Presently there is a large volume of pending I-485 applications
in the backlogged China and India Second Preference categories because in
the summer of 2007, for a 30-day period, both the EB-2 and EB-3 categories
suddenly became “current,” allowing thousands of people to submit their
permanent residency applications at the same time. With the prospect of
more rapid, although unpredictable, advancement in these two EB-2
categories, it is always possible that a pending I-485 application could be
approved while the applicant is temporarily traveling abroad. For example,
in July 2011, the Priority Dates for both EB-2 China and India will advance
from October 15, 2006 to March 8, 2007. This is a significant advancement
in one month. Accordingly, we would urge all I-485 applicants to check
their Priority Dates and to consider the documents which will be needed in
order to reenter the United States in the event that they or a family
member are temporarily traveling abroad at the time U.S. Citizenship and
Immigration Services (USCIS) approves their I-485 permanent residence. In
order to ensure that all I-485 applicants understand the potential impact
of international travel and what documentation will be required for
reentry, all options should be discussed with one’s attorney well before
any planned travel.
Advance Parole
In order to maintain their continuing eligibility for
Adjustment of Status, applicants with pending I-485 applications may apply
for and be granted “Advance Parole,” which will allow them to travel
internationally and be “paroled” (i.e., conditionally readmitted) into the
United States until a decision is made on their pending I-485 applications.
The Advance Parole must be obtained prior to departure from the United
States, and it typically takes USCIS approximately 90–120 days to process
an Advance Parole application. The immigration regulations also allow I-485
applicants in valid H-1B/H-4 and L-1/L-2 status to reenter the United
States after temporary travel abroad without negatively impacting their
pending I-485 application. However, this leniency does not apply to
any other category of visa holder. Everyone else with a pending I-485
application must present an Advance Parole document upon entry to the
United States.
A valid Advance Parole Document, unexpired H-1B/H-4 visa or
L-1/L-2 visa can be presented to the airline in order to board a flight
back to the United States. If an individual’s I-485 application is approved
during his or her temporary absence from the United States, the individual
can still present a valid Advance Parole document, H-visa or L-visa to the
airline in order to be permitted to board the plane for the return flight
to the United States. And while it’s true that once the I-485 is approved
the individual is no longer eligible to be admitted in H or L status, nor
is Advanced Parole the correct vehicle for entry, there are options
available to U.S. Customs and Border Protection (CBP) once the person
arrives in the U.S.
If the I-485 applicant is not aware that the I-485
application has been approved during the temporary absence from the United
States, this fact could be picked up by the CBP officer who interviews the
individual at the port of entry when the name is entered into the USCIS
database. If the individual is aware that the I-485 application was
approved during the temporary absence abroad, the individual should inform
the CBP officer of the change in the immigration situation.
CBP Procedures on Reentry as a U.S. Permanent Resident
The CBP officer at the port of entry has several options if
an individual’s I-485 application was approved during the individual’s
temporary absence from the United States. One option is to waive the
documentary requirements and allow the individual to enter as a U.S.
permanent resident. In this case, the individual’s fingerprint would be
taken for the creation of the Permanent Resident Card, or “green card,” and
his or her passport would be stamped with temporary evidence of the
permanent resident status. This temporary evidence would also allow the
individual to travel internationally until the Permanent Resident Card is
received.
Another option a CBP officer has is to “parole” (i.e.,
conditionally admit) an individual into the United States for a short
period of time to conduct a “Deferred Inspection,” so that the individual
can present proof of the I-485 approval (e.g., the Form I-797 Notice of
Approval or the actual Form I-551 Permanent Resident Card or “green card,”
which is usually issued within a few weeks of the I-485 approval), at a
later date. Upon receiving proof of the I-485 approval, CBP will then
“admit” (without condition) the individual as a U.S. permanent resident.
It has been our experience that the first option is typically
followed.
Best Travel Option: Advance Parole
One circumstance that could cause a potential problem is if a
person is already overseas and is intending to apply for a new H or L visa
to reenter the United States, but the person’s I-485 application is
approved prior to applying for the visa. In this case the person would not
be eligible for the H or L visa since his or her I-485 U.S. permanent
residency application has been approved. If the individual does not have a
valid Advance Parole document, he or she would not have any documentation
required to board the plane or for presentation at the Port of Entry.
The most conservative approach is to routinely apply for and
obtain Advance Parole documents for international travel for the entire
duration of the pendency of the permanent residence application.
Conclusion
Plan in advance! It is important to talk with your
immigration counsel well in advance of travel to avoid any potential delays
or complications if an I-485 application is approved during temporary
international travel in the upcoming months.
Click here to view Mintz Levin’s Immigration
attorneys.
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