27 Jun 2022
The ongoing pandemic has made movement in the monthly visa bulletin even harder to predict than normal. Moreover, while the U.S. Citizenship and Immigration Services (USCIS) can be painfully slow in adjudicating I-485 applications, some of these applications are unexpectedly approved rather quickly. This unpredictability has led to a spike in inquiries about what a foreign national should do in cases where one’s I-485 is approved while outside the United States. This article, presented for the benefit of MurthyDotCom readers, provides a general overview of what to do if this occurs.
Key Issues When Priority Dates Become Current
Even before the pandemic, it was not uncommon for one’s I-485 to be approved when the applicant is outside of the U.S. Before traveling abroad, one should consider options for reentering if the adjustment-of-status application is approved while out of the United States. Important considerations include the documents needed in order to be permitted to board the return flight, as well as the documents and information appropriate for the U.S. Customs and Border Protection (CBP) at the airport or other U.S. port of entry (POE).
Traveling With I-485 Pending
The general rule is, if an I-485 applicant departs the United States while the application is still pending, the I-485 is considered abandoned and should be denied. However, there are several important exceptions to this general rule. If the I-485 applicant is issued an advance parole (AP) document prior to departing the U.S., which remains valid through the date the applicant returns from the overseas trip, the I-485 typically will not be impacted by the overseas travel. Similarly, if the I-485 applicant is in valid L-1, L-2, H1B, H-4, K-3, K-4, or V nonimmigrant status, and remains eligible for that status upon returning to the U.S., the I-485 application is not considered to be abandoned.
Returning from Overseas Trip After I-485 Approved
If the I-485 is approved while the applicant is outside the U.S., the first hurdle to overcome is usually presenting a valid document to the airline in order to board a U.S.-bound flight. This process normally is the same as it would have been if the I-485 were still pending. For instance, if the person has a valid AP document, the airline typically will accept this as a valid document for immigration purposes. Or, if the person was in a qualifying nonimmigrant status, such as H1B, upon leaving the U.S., the individual can present a valid H1B visa “stamp” and approved H1B petition to board the flight.
Admission at U.S. POE
Upon arrival at the U.S. POE, the AP document or one of the previously discussed qualifying nonimmigrant visas (e.g., H1B, H-4, L-1) can be presented to the CBP officer to request admission. But, if the I-485 applicant is aware that his/her green card was approved during the overseas trip, the individual should advise the CBP officer of this at the POE.
CBP Procedures for Permanent Residents
If a permanent resident (i.e., “green card” holder) does not have proper proof of that status – as is typically the case when a green card is issued while the applicant is overseas – the CBP officer has several options. The officer may waive the documentary requirements and allow the individual to enter as a permanent resident. Alternatively, the CBP office may “parole” the person into the United States for purposes of a deferred inspection. Deferred inspection in a case like this means that the individual will be required to return to a CBP deferred inspection location at a later time to provide documentation of permanent resident status and to complete the POE processing as a permanent resident.
We at the Murthy Law Firm have seen instances of CBP officers simply allowing such entry on AP or in H or L status for individuals who obtain the I-485 approval while traveling abroad. This does not alter the fact that the foreign national has been approved as a permanent resident. S/he should receive the green card in the mail following the I-485 approval, and should use that document for future work and return travel into the United States, otherwise complying with all requirements applicable to U.S. permanent residents.
The green card process can take many years and can be quite confusing. As with numerous aspects of the immigration process, it is important to plan in advance, and to get proper immigration advice to minimize risks of delays and other complications. At the Murthy Law Firm, we understand the many complex nuances of U.S. immigration law and enjoy helping individuals overcome these hurdles to the satisfaction of the law.
While some aspects of immigration have changed in significant ways in the years since MurthyDotCom began publishing articles in 1994, there is much that is still the same. From time to time, clients of the Murthy Law Firm are referred to articles, like this one, which remains relevant and has been updated for our readers.
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Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.