Can I Travel Outside US While I 140 Is Pending? Risks & Tips

Can I travel outside the US while my I-140 is pending? The answer depends on your current immigration status. Generally, if you are in a non-immigrant status like H-1B or L-1, travel is usually permissible, but there are important considerations. If you are in the US on a status that requires you to maintain continuous presence and haven’t obtained advance parole travel, leaving the US could be problematic. This article will explore the potential risks of pending I-140 international travel, offer guidance on permissible travel with pending I-140, and provide tips for navigating the complexities of foreign travel after I-140 filing.

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The I-140 Petition: A Key Step Towards a Green Card

The I-140, Immigrant Petition for Alien Worker, is a crucial form filed by an employer on behalf of a foreign national seeking permanent residency (a green card) in the United States based on employment. Its approval signifies that the US Citizenship and Immigration Services (USCIS) has determined that the foreign national meets the basic requirements for the employment-based immigration category. However, I-140 approval alone does not grant any immigration status or work authorization. It is merely the first step in a multi-stage process that can also include applying for Adjustment of Status (Form I-485) within the US, or Consular Processing abroad.

H1B, L1, and Travel While I-140 is Pending: A Common Scenario

Many individuals in the US are working on H-1B or L-1 visas while their employer sponsors them for a green card. In these cases, travel outside the US while the I-140 is pending is generally allowed, provided that:

• You maintain your valid H-1B or L-1 status.
• You possess a valid H-1B or L-1 visa stamp in your passport (unless visa-exempt).
• You have the necessary documentation to re-enter the US in your H-1B or L-1 status (e.g., approval notice, employment verification letter).

However, even under these circumstances, travel is not entirely risk-free. There are nuances to consider.

Potential Risks for H1B/L1 Holders:

• Visa Validity: Ensure your visa stamp is valid for re-entry. If it has expired, you will need to apply for a new visa at a US embassy or consulate abroad. This process can take time, and visa issuance is not guaranteed.
• Intent to Immigrate: While holding a non-immigrant visa like H-1B, you must demonstrate that you intend to return to your home country after your authorized stay. Having a pending I-140 suggests an intent to immigrate permanently. While USCIS generally understands this duality for H-1B and L-1 holders, a consular officer processing your visa application might scrutinize your case more closely. Be prepared to provide evidence of your ties to your home country and your intention to comply with the terms of your non-immigrant visa.
• Changes in Employment: If you change employers while your I-140 is pending and before your I-485 is filed or approved (if applicable), the pending I-140 is generally no longer valid for your green card application. You would need a new I-140 petition filed by your new employer.
• Denied I-140: If your I-140 petition is ultimately denied, it could impact your ability to extend your H-1B status beyond the standard six-year limit.

H1B Travel During I-140: Tips for Minimizing Risks

• Renew Your Visa Stamp Well in Advance: Don’t wait until the last minute to renew your visa. Start the process early to avoid travel disruptions.
• Gather Necessary Documents: Carry copies of your I-797 approval notice, employment verification letter, recent pay stubs, and I-140 receipt notice (or approval notice, if available) when you travel.
• Be Prepared for Questions: Be ready to answer questions from immigration officials about your employment and your intention to comply with your visa terms.
• Consult with an Immigration Attorney: Before traveling, it’s always a good idea to consult with an experienced immigration attorney to discuss your specific situation and ensure you understand the potential risks.

Advance Parole Travel: An Option, But Not Always the Best Choice

What is advance parole travel? Advance Parole allows certain foreign nationals with pending Adjustment of Status applications (Form I-485) to travel outside the US and re-enter without abandoning their application. While it may seem like a convenient option if you are in a status that doesn’t normally allow for international travel while pursuing a green card, using Advance Parole can have unintended consequences for H-1B and L-1 holders.

Why is Advance Parole potentially problematic for H1B/L1 Holders?

• Abandonment of Status: Using Advance Parole to re-enter the US generally means that you are no longer entering in H-1B or L-1 status. This can be problematic because you are then considered an Adjustment of Status applicant, which may impact your ability to extend your H-1B or L-1 status in the future, or change employers, or engage in other activities normally permissible under those statuses.
• Potential for Denial at the Border: Even with Advance Parole, there is no guarantee of re-entry. CBP officers still have the authority to deny admission if they believe you are inadmissible for any reason.
• Impact on Future Visa Applications: Using Advance Parole can sometimes complicate future visa applications.

When Might Advance Parole Be Necessary?

If you are not in H-1B or L-1 status, or if you have a situation that prevents you from maintaining your non-immigrant status (e.g., a job change that invalidates your H-1B), Advance Parole might be the only option to travel and return to the US while your I-485 is pending.

Recommendation: If you are in H-1B or L-1 status, it is generally advisable to avoid using Advance Parole unless absolutely necessary. Consult with an immigration attorney to carefully evaluate the pros and cons in your specific situation.

Travel While I-140 is Pending: Other Immigration Statuses

The rules and risks associated with travel while an I-140 is pending vary depending on your immigration status.

• F-1 Students (with OPT or STEM OPT): Traveling while on OPT or STEM OPT with a pending I-140 is generally permissible, but you must have a valid EAD card, a valid F-1 visa, and a valid I-20 endorsed for travel. However, using Advance Parole instead of your F-1 visa and EAD card to re-enter the US will likely jeopardize your F-1 status.
• Other Non-Immigrant Statuses (e.g., TN, O-1): Consult with an immigration attorney to determine if travel is permissible and what documentation you need to re-enter the US. Using Advance Parole may invalidate your non-immigrant status.

I-140 Approval Travel Restrictions: What Changes After Approval?

Are there any I-140 approval travel restrictions? No, the approval of your I-140 petition, by itself, does not impose any travel restrictions. However, its significance lies in its role in the overall green card process. If you’ve filed Form I-485 (Application to Adjust Status) along with your I-140, then travel becomes a more crucial consideration.

What happens after I-140 approval?

• If you haven’t filed I-485: You can generally continue to travel as before, maintaining your existing non-immigrant status (e.g., H-1B, L-1).
• If you have filed I-485: As mentioned earlier, travel on Advance Parole is possible, but should be carefully considered by those in H-1B and L-1 status. If you leave the US without Advance Parole while your I-485 is pending, it can be considered abandonment of your application.

Impact of Travel on I-140: Maintaining Eligibility

Your travel should not negatively impact of travel on I-140 petition if you adhere to the regulations of your existing non-immigrant status. The key is to maintain eligibility for the underlying I-140 petition. For example, if the I-140 is based on a specific job offer, ensure you continue working in that role. Significant changes to your employment or qualifications could potentially jeopardize the I-140 petition.

Effect of Leaving US on Pending I-140: Abandonment and Other Considerations

What is the effect of leaving US on pending I-140? Leaving the US while your I-140 is pending, in itself, does not cause abandonment of the I-140 petition. The I-140 is filed by your employer on your behalf. However, abandoning the job that the I-140 is based on can jeopardize the petition.

Abandonment primarily becomes an issue when you have filed Form I-485. Leaving the US without Advance Parole while your I-485 is pending is generally considered abandonment of the I-485 application.

Reentry Permit and I-140: A Less Common Scenario

A reentry permit I-140 doesn’t directly exist. Reentry permits are typically used by lawful permanent residents (green card holders) who need to travel outside the US for extended periods (longer than one year but generally no more than two years). Since the I-140 is a petition for future permanent residency, a reentry permit is not relevant at this stage.

Green Card Application Abroad: Consular Processing and Travel

If you are pursuing your green card through consular processing (applying for an immigrant visa at a US embassy or consulate abroad), travel is generally less restricted while the I-140 is pending. You would typically remain outside the US until your immigrant visa is approved and you can enter as a lawful permanent resident.

Key Considerations for Consular Processing:

• Maintain Valid Non-Immigrant Status (if applicable): If you are in the US while the I-140 is pending, and plan to consular process, ensure you maintain a valid non-immigrant status until you depart the US to attend your immigrant visa interview.
• Inform USCIS: Let USCIS know that you intend to pursue consular processing so they can forward your approved I-140 to the National Visa Center (NVC).

Fathoming the Risks and Rewards

Navigating the complexities of travel while an I-140 is pending requires careful consideration of your individual circumstances, immigration status, and long-term goals. Consult with an experienced immigration attorney to fully assess the potential risks and ensure you make informed decisions. This proactive approach will help you protect your immigration status and increase your chances of a successful green card application.

Summary of Key Points:

• Travel on H-1B/L-1 while the I-140 is pending is generally permitted, but maintain valid status and be prepared for scrutiny.
• Avoid using Advance Parole if you are in H-1B/L-1 status, unless absolutely necessary.
• Understand the impact of travel on your specific immigration status.
• Consult with an immigration attorney before traveling.

Frequently Asked Questions (FAQ)

Q: Can I lose my I-140 if I travel outside the US?

A: Traveling outside the US, in itself, will not cause you to lose your I-140. However, abandoning the job the I-140 is based on, or otherwise failing to maintain eligibility for the underlying visa, can jeopardize the I-140 petition.

Q: What happens if my I-140 is denied while I am outside the US?

A: If you are outside the US in a valid non-immigrant status (e.g., H-1B), the denial of the I-140 may not immediately impact your ability to re-enter. However, it will prevent you from pursuing Adjustment of Status based on that I-140. You would need to have a new I-140 petition approved.

Q: Is it safe to travel after I-140 approval but before I-485 filing?

A: Yes, it is generally safe to travel after I-140 approval but before filing the I-485, as long as you maintain your valid non-immigrant status and have the necessary documentation to re-enter the US.

Q: My I-140 is approved, and my I-485 is pending. Can I travel?

A: If your I-485 is pending, you should generally only travel with Advance Parole. Traveling without Advance Parole may be considered abandonment of your I-485 application, unless you are maintaining valid H-1B or L-1 status and meet certain other requirements.

Q: How long does it take to get Advance Parole?

A: Processing times for Advance Parole can vary, but it typically takes several months. Check the USCIS website for the most up-to-date processing times.

Q: Where can I find more information about travel and immigration?

A: You can find more information on the USCIS website (www.uscis.gov). You can also consult with an experienced immigration attorney.