Using an Advance Parole Issued While Outside the U.S. May Result in Abandonment of the I-485 Application
Adjustment of status applicants are eligible to receive an Advance Parole document that enables them to travel internationally while the I-485 application processes, and the I-131 application for the Advance Parole document may be filed concurrently with their I-485 filing or at any time while it is pending. Generally, the Advance Parole must be approved and the travel document must be in-hand before the applicant departs the U.S.; otherwise, they can be considered to have abandoned the adjustment of status application.
An important exception to this rule is for applicants maintaining valid dual-intent nonimmigrant status, which includes H and L status. Nonimmigrants in these visa categories may travel abroad without risking abandonment of the I-485 application, if their H/L status is valid at the time they depart the U.S., and they return to the U.S. in valid H/L status.
In addition, since 2017 it has become common for USCIS to deny an I-131 Advance Parole application if the applicant departs the U.S. while it is pending. However, as long as the applicant departed and returned in valid H/L status, the I-131 denial would not otherwise affect the adjustment of status application, and the I-131 could simply be re-filed upon their return to the U.S.
In recent months though, it has been observed that USCIS does not always deny the I-131 application when an applicant departs the U.S., and there have been situations where the Advance Parole document (either the EAD/AP combo card or the I-512L form) have been approved and issued while the applicant is outside the U.S. In these situations, applicants may be tempted to have the AP document shipped to them to use for quick re-entry to the U.S., particularly if there is a lengthy wait for an H/L visa appointment at the consulate.
However, USCIS field offices have recently issued Requests for Evidence related to the I-485 application in these situations, questioning whether the applicant abandoned the pending I-485 by virtue of their departure without the Advance Parole and entry in a status other than H or L – in essence, the field office appears to consider the Advance Parole erroneously approved and invalid because it was issued when the applicant had already departed the United States.
Adjustment applicants are therefore cautioned against using an Advance Parole document if they departed the U.S. while the I-131 application was pending, as it appears USCIS may consider it erroneously issued. If they are traveling without an Advance Parole, they should ensure their departure and return are in valid H/L nonimmigrant status to prevent abandonment of the I-485 application, and can re-file Form I-131 upon their return.
Rebecca Chen is a Partner at Reddy & Neumann. Her representation includes advising clients throughout the non-immigrant and immigrant visa application process, from initial filing, responding to various requests for evidence, and processing at overseas consulates. Her years of experience in the immigration field have made her a knowledgeable resource for complex business immigration matters.