H-1B Work/Travel Issues When I-485 Pending

An Adjustment of Status application (Form I-485) is filed when a foreigner wishes to alter their non-immigrant status to that of immigrant or status as a permanent resident. This is generally the last stage for Green Card approval.

If you are in the process of filing an Adjustment of Status petition and you urgently need to leave the USA and you have filed your Adjustment of Status petition as a non immigrant on Form I-485 it is crucial that you understand that traveling out of the U.S.A. could affect your petition. This is particularly important for H-1B holders.

An Adjustment of Status petition takes the USCIS a long time to process so if the applicant is out of the country and fails to respond to requests by the USCIS for evidence (RFE), or fails to attend interviews, fails to turn up for fingerprints and biometrics, and travels consistently outside of the U.S. in the absence of an Advanced Parole, the USCIS may find that the application has been abandoned.

To prevent upsetting the process of an Adjustment of Status application, if the applicant has to travel overseas for either personal or business reasons he or she is advised to apply for an Advanced Parole before departing the country. Usually, a non-immigrant coming into the U. S.A. has to possess some sort of visa. The AP lets some aliens return to the United States after travel overseas abroad without possessing a valid visa. If an Advanced Parole is held the I-485 application will still be considered valid if the applicant goes overseas

The H-1B non- immigrant must have an H-1B visa status which is valid in the US before departing to travel overseas. It is not necessary to apply for an AP. If an H-1B non-immigrant does not possess an H-1B entry visa which is valid in their passport, they can apply at a US consulate for an H-1B visa while overseas. This will permit them to re-enter the US. Either way, however, they have to go back to work for the H-1B employer that originally sponsored them for H-1B status.

When they return to the U.S.A. to take up employment with that specific employer, their H-1B visa status is still current and their Adjustment of Status application is still active. This means an alien who is the holder of a valid H-1B visa status before undertaking travel is not required to file an Advanced Parole before they depart for the United States so as to maintain the validity of their Adjustment of Status application.

The H-1B is a dual intent visa so the filing of a I-485 will not have any influence on any later H-1B visa application filed through a U.S.A. Consular Office overseas. This differs from other visas (but notably, not the L-1 visa), where indicating immigrant intent may cause visa application concerns at U.S. Consular Offices overseas, H-1B holders may apply for Adjustment of Status and undertake travel out of the U.S. without any worries about the status of any H-1B applications.

Return to "The H-1B Visa" to learn more.