- Reminder about Travel Risk While Adjustment of Status is Pending
- November 18, 2008 | Authors: Gregory P. Adams; Douglas Halpert
- Law Firm: Dinsmore & Shohl LLP - Cincinnati Office
A recent U.S. federal court case serves as a reminder that travel abroad while an adjustment of status (to permanent resident) application is pending with U.S. Citizenship and Immigration Services (USCIS) can be risky.
Mr. Hassan, a Pakistani citizen, traveled abroad while his adjustment of status application was pending and planned to return to the United States based upon a valid and unexpired "advance parole" travel authorization issued by USCIS. While Mr. Hassan was abroad, USCIS denied his adjustment of status application and revoked the advance parole document. When Mr. Hassan attempted to re-enter the U.S., he was denied admission, placed in expedited removal proceedings, and removed (deported). He filed a lawsuit but the court concluded that advance parole is granted by USCIS solely to allow one to return to the United States while one's adjustment of status application is pending. The court decided that once an adjustment application is denied, continued usage of the advance parole document is not permissible.
We recommend that employers keep their employees' underlying H-1B, L-1 or other underlying temporary visa classification alive at least until USCIS approves the Immigrant Petition that is the basis for the adjustment application and perhaps even throughout the pendency of the adjustment of status stage. If USCIS denies the adjustment of status application, USCIS cannot remove the adjustment applicant if he or she holds a valid and unexpired underlying nonimmigrant visa status, nor may the government normally refuse to re-admit to the United States someone holding a valid H-1B or L-1 visa. In situations where there are additional issues beyond the uncertainty about whether USCIS will approve the Immigrant Petition (such as a status issue or other eligibility issue), keeping the underlying work visa classification alive through the point of the final decision (and not just through the point of Immigrant Petition approval) on the permanent residence application may be advisable.