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Advanced Parole or H-1B?

It is a stressful, but rewarding, time when a noncitizen finally begins their adjustment of status process to obtain a green card. Not only are many of the visa restrictions lifted, but it also allows for more frequent travel in and out of the United States. This article will explore some of the issues, however, of traveling with a pending I-485 adjustment of status application with USCIS.

The old law required a foreign national to obtain an Advance Parole document to travel outside the US while the I-485 was filed and still pending adjudication with USCIS. However H-1B, L, and K-3/K-4 (but not K-1/K-2) visa holders with a pending I-485/Adjustment need not seek advanced parole before travel. However, there is no harm in obtaining one, and in fact a memorandum put out by USCIS states that it is the alien's prerogative to present either the advanced parole document or their H-1, L, or K-3/K-4 visa papers to evidence proper entry into the United States. If the noncitizen presents both, however, the reviewing officer should take the visa papers instead of the advanced parole document and inform the noncitizen that they don't need the advanced parole document.

If the noncitizen re-enters the United States by using the Advanced Parole document instead of his or her visa papers, it does not negate their H-1B status. Thus, when a nonimmigrant is attempting to adjust status to obtain a green card, there is no break in the requirement to continuously maintain valid nonimmigrant status. For all intents and purposes, the H-1B status is continuously maintained and H-B beneficiaries have gone on to successfully obtain extensions premised on a valid underlying H-1B visa. Even if there were to be some question about this, the Act specifically creates a safe harbor exception for "technical violations," which this situation would fall under. It would be incongruous for the noncitizen to be considered "out of status" when using an Advanced Parole document to re-enter the United States, but still allow him or her to obtain extensions on that H-1B visa.

If you have questions about your visa and the effect of obtaining an Advanced Parole document, contact our office today for more information or to speak with an attorney.

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