NEW DEVELOPMENT: USCIS Partially Reverses Practice of Denying Advance Parole Travel Authorization (APA) if Applicant Travels while APA Application is Pending
In August 2017 we reported that USCIS Service Centers had begun denying applications for Advance Parole Travel Authorization (“APA”) filed on Form I-131 if the Service Center was 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.
Partially reversing this policy, on February 8, 2019, the Office of the Citizenship and Immigration Service Ombudsman issued the following statement:
“If you file Form I-131, Application for Travel Document, to request an advance parole document and depart the United States without possession of an advance parole document that is valid for the entire time you are abroad, your Form I-131 will be considered abandoned. At times, an individual may have an approved advance parole document while a second one is pending. Individuals may travel on the approved advance parole document, provided the document is valid for the entire duration of their time abroad. The pending Form I-131 will not be considered abandoned in this situation.”
What this statement does not do is expand the policy reversal to situations where the I-485 applicant might choose to travel and return to the U.S. in H-1B/H-4 or L-1/L-2 status. Thus, apparently, if an I-485 applicant does not possess and use a previously approved APA, but instead travels pursuant to H-1B/H-4 or L-1/2 status, then if the applicant travels he/she will abandon any pending I-131 Application for Issuance of Advance Parole Authorization. Prior to the earlier developments in 2017, applicants for adjustment of status have, since 2007, been able to travel pursuant valid H-1B/H-4 or L-1/L-2 status and return to the U.S. without impacting their pending adjustment of status applications or any pending I-131 filed to permit travel while adjustment of status is pending. While it appears to continue to be acceptable to travel pursuant to H-1B/H-4 or L-1/L-2 status while adjustment of status is pending, doing so would jeopardize the approval of any I-131 Application for Advance Parole that was pending while the travel occurred.
Therefore, 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 doing so pursuant to an already approved APA that will be valid for the entire duration of proposed travel and will be used for return from that travel.
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.