USCIS is Denying Requests for Advance Parole Travel Authorization (APA) if Applicant Travels while APA Application is Pending
It has been reported that USCIS Service Centers have begun denying applications for Advance Parole Travel Authorization (“APA”) filed on Form I-131 if the Service Center is aware that the applicant has traveled internationally while the request for APA is pending, notwithstanding the fact that the applicant may have either a valid previously issued APA document or may be traveling pursuant to a valid H-1B/H-4 or L-1/L-2 visa. USCIS Headquarters recently advised the American Immigration Lawyers Association that it considers this action to be correct, and that an I-485 applicant who travels after submitting an I-131 application for APA and before it is adjudicated is considered to have abandoned that I-131 application, even if the applicant holds a previously issued and still valid APA or holds a previously issued and still valid H- L- or K-3/K-4 status and visa.
By the historic rule in this area, found at 8 Code of Federal Regulations Section 245.2(a)(4), an applicant for adjustment of status is considered to abandon a pending application for adjustment of status if he/she travels internationally after submitting the I-485 application unless he/she has been issued APA permitting the travel. USCIS had modified this rule somewhat in 2007 to permit applicants who hold valid H-, L- or K-3/K-4 visas to travel under their existing visas and return without jeopardizing their pending I-485 applications. Under this new development, USCIS is not denying the I-485s but is denying the I-131 APA applications of such individuals. This is a baffling development since there seems to be no clear regulatory basis for this policy and because it effectively means that I-485 applicants, even if they have H- or L- visas or have been issued an earlier APA that is still valid, will be effectively grounded from travel on a recurring basis for several months each time when I-131 applications are submitted while their I-485s are pending. In some cases, I-485 applications remain pending for several years due to visa quota backlogs or other issues that prevent the I-485 from being adjudicated.
Unless this issue is resolved differently in the future, I-485 applicants should not depart the U.S. while an I-131 Application for Advance Parole Travel Authorization is pending unless they are prepared to see that application denied for abandonment. Obviously they should not travel during such period if they do not already hold a valid APA or are maintaining H- , L- or K-3/4 status that would permit them to return to the U.S., as they would risk abandoning the I-485 itself under such circumstancesons, petitions for extension of status, petitions for a change of employer, and H-1B amendments. Other nonimmigrant visas, including Ls and O-1s are not affected by the suspension
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Finnan, Fleischut & Associates will continue to keep our clients advised of important developments in this area. If you have specific questions about how these developments affect a current or possible future situation, please contact us.