Individuals who have filed Adjustment of Status (AOS) applications (including TN visa workers seeking green cards based on marriage to a U.S. citizen) must be aware of the travel restrictions and the potential repercussions of travel inherent in the AOS process.
Overview of AOS Travel Restrictions
Generally, individuals who have pending applications for adjustment of status cannot depart the U.S. or else their adjustment applications will be deemed abandoned and terminated by USCIS. 8 C.F.R. s. 245.2 (a) (4) (ii) (A).
There are two main exceptions to this rule:
Individuals who filed for and obtained Advanced Parole as part of their AOS application.
Individuals who are in lawful H-1B or L-1 visa status. 8 C.F.R. s. 245.2 (a) (4) (ii) (B) and (C).
TN Visa Workers / AOS Applicants & Travel
Individuals who are on TN visa status who have pending adjustment of status applications based on marriage to a U.S. citizen should file for Advance Parole if there is a potential need for traveling outside the U.S. while the AOS application is pending.
If a TN visa worker departs the U.S. while the AOS application is pending, not only will her/his AOS application be deemed abandoned, the individual may not be allowed to re-enter the U.S. under his/her TN visa status.
The filing of an AOS application is generally considered a significant sign of immigrant intent. Many border officers will see the AOS filing as inconsistent with the temporary entry requirements of the TN, and will deny the individual re-entry to the U.S. under the TN visa classification.
The drastic result for TN visa workers / AOS applicants who depart the U.S. without Advance Parole is that they may be forced to complete the green card process through Immigrant Visa Processing (IVP). This means that they may have to wait outside the U.S. until the IVP filing is complete, which can take up to a year or longer.
Filing for Advance Parole
Individuals who have filed for Adjustment of Status including TN visa workers are eligible to apply for Advance Parole (AP).
An application for Advanced Parole is made on Form I-131 and may be submitted concurrently with the AOS application. In reviewing an I-131 application, USCIS will consider whether the applicant meets the initial requirements for adjustment of status. Adjudicator’s Field Manual s. 54.3.
USCIS will also review the basis for the Advance Parole request. An applicant for adjustment of status may be eligible for Advance Parole if he/she:
Seeks to depart temporarily from the U.S. for any bona fide business or personal reason where the adjustment application cannot be completed because visa numbers have became unavailable (not applicable for applications based on marriage to a U.S. citizen).
Must depart temporarily for emergent personal or bona fide business reasons before a decision can be made on the pending application. AFM s. 54.3.
Additionally, USCIS must verify the identity of AP applicants based on a comparison of the biometrics taken, information submitted with the application, and data in USCIS’ records. AFM s. 54.3.
New EAD/AP Combo Card
Previously, USCIS had issued separate documents for an Employment Authorization Document (EAD) and Advanced Parole (AP).
Beginning in December 2010, USCIS initiated a new policy that permitted the issuance of a single document covering both Employment Authorization and Advance Parole.
The new EAD/AP “combo card” serves as evidence that the AOS applicant is authorized to accept employment. It also permits an individual to travel outside the U.S. and return to the U.S. while his/her adjustment of status application is pending. The EAD/AP card protects the applicant from abandoning his/her adjustment application when traveling abroad.
The EAD/AP card is generally issued within 4-6 months of filing the applications. One of the reasons it is important to properly prepare an Adjustment of Status application is that if the application is lacking any of the principal items required, USCIS will issue a Request for Evidence (RFE). Such an RFE will stop processing of the EAD/AP card. Processing will start all over upon receipt of the required item. If all initial items are provided, but USCIS requires additional information, any RFE issued will suspend processing, but upon receipt of the required information, processing will continue from the point of interruption. See USCIS Memo, pg. 3 (Jan. 2, 2009).
The EAD/AP card is valid for multiple entries to the U.S. until the card expires. Most EAD/AP cards issued based on marriage to a U.S. citizen will be valid for a 2-year period. USCIS Policy Manual, Vol. 10, Ch. 4.
If an individual’s adjustment of status application is not completed prior to the expiration of the EAD/AP card, he/she may file for a new EAD/AP card.
Traveling with the EAD/AP Card
Possession of an EAD/AP card does not guarantee an individual’s re-admission to the U.S. The border officers have the authority to inspect individuals seeking re-entry with EAD/AP cards and to ensure that they are eligible for re-entry to the U.S.
Ordinarily, individuals seeking re-entry to the U.S. under Advance Parole will be processed at the U.S. border’s “secondary inspection”, i.e. not at the initial inspection booth. CBP officers will question the applicant on the basis of his/her parole, to determine if the individual’s explanation and the basis on which the parole was issued are consistent. Inspector’s Field Manual s. 16.1.
CBP will also assess whether the individual is inadmissible to the U.S. If an individual is found to be inadmissible to the U.S., he/she may be allowed to withdraw the application for admission, or the individual may be placed in removal proceedings. IFM s. 16.1. Adjustment applicants seeking entry under Advance Parole are not subject to the expedited removal process. Id.
One major ground of inadmissibility that could have affected Advance Parole users was unlawful presence, which is triggered when a person departs the U.S. and results in a 3/10 year bar to the U.S. See Virtue Memo, Legacy INS (Nov. 26, 1997). Within the TN visa context, an individual may be subject to the unlawful presence bars if he/she remained in the U.S. for more than 180 days (leads to 3 year bar) or 1 year (10 year bar) past the expiration of his/her TN I-94 card. According to a recent court case, a departure under Advance Parole will no longer trigger the penalties for unlawful presence. DHS Memo (Nov. 2014).
Effect of Re-entry with EAD/AP Card
Once an individual enters the U.S. under Advance Parole, he/she will no longer be considered as holding TN visa status. See E.H. Skerrett Letter, Legacy INS (Sept. 15, 1995). In this situation, any family members on TD visa status would lose their TD status when the TN visa worker enters the U.S. under Advance Parole. Id.
TN visa workers who have entered the U.S. under Advance Parole should inform their employers of the change in their immigration status and present their EAD/AP card as proof of continued employment authorization.