The Immigration and Nationality Act (INA) governs the rules for traveling abroad while a green card application is pending. This law affects all applicants for permanent residence in the United States, including those applying through family or employment-based visas.
As of January 2022, applicants must meet specific conditions to travel abroad without jeopardizing their application, including obtaining advance parole under Section 212(d)(5) of the INA.
Green Card Application Process
The green card application process is governed by Section 245 of the INA, which allows certain applicants to adjust their status to that of a lawful permanent resident. The application process typically takes 12-18 months, during which time the applicant may be eligible to apply for advance parole, allowing them to travel abroad for up to 365 days. The applicant must pay a filing fee of $1,140 and submit Form I-485, Application to Register Permanent Residence or Adjust Status.
In practice, this means that applicants who are eligible for advance parole can travel abroad without abandoning their green card application, as long as they obtain the necessary documentation and follow the required procedures. The applicant must also meet the eligibility requirements under Section 245(a) of the INA, including being physically present in the United States for at least 180 days.
The court has established that the applicant bears the burden of proof to demonstrate eligibility for advance parole, as set forth in the precedent case of Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012). This is where the law gets teeth, as applicants who fail to meet the eligibility requirements may be denied advance parole and risk jeopardizing their green card application.
When Travel is Allowed
Applicants who have filed Form I-131, Application for Travel Document, and have been granted advance parole may travel abroad for up to 365 days without jeopardizing their green card application. The applicant must have a valid passport and meet the requirements under Section 212(d)(5) of the INA, including demonstrating that their travel is for a legitimate purpose and that they intend to return to the United States. The applicant must also pay a filing fee of $575 and submit supporting documentation, including proof of financial support and a valid passport.
In plain terms, this means that applicants who are eligible for advance parole can travel abroad for business, education, or family emergencies, as long as they follow the required procedures and meet the eligibility requirements. The applicant must also demonstrate that their travel will not adversely affect their green card application, as set forth in the regulations at 8 CFR 245.2.
When Travel is Prohibited
Applicants who have not been granted advance parole or who are subject to certain grounds of inadmissibility under Section 212(a) of the INA may be prohibited from traveling abroad. The court has established that applicants who are inadmissible under Section 212(a)(6)(A)(i) may be denied advance parole and risk being barred from re-entering the United States. The applicant may be subject to a fine of up to $2,500 and may be required to appear before an immigration judge.
This distinction matters, as applicants who are prohibited from traveling abroad may be required to remain in the United States for the duration of their green card application, which can take up to 24 months. The applicant must also demonstrate that they are not a public charge, as set forth in the regulations at 8 CFR 212.21.
The Application Process
To apply for advance parole, applicants must submit Form I-131, Application for Travel Document, and supporting documentation, including proof of financial support and a valid passport. The applicant must also pay a filing fee of $575 and appear for a biometrics appointment, which may be scheduled within 30 days of filing. The applicant must submit their application to the U.S. Citizenship and Immigration Services (USCIS) and may be required to appear for an interview.
In practice, this means that applicants who are eligible for advance parole must carefully follow the application procedures and submit all required documentation to avoid delays or denials. The applicant must also meet the eligibility requirements under Section 245(a) of the INA, including being physically present in the United States for at least 180 days.
The USCIS has established that applicants who are eligible for advance parole may apply for a refugee travel document, which allows them to travel abroad and re-enter the United States, as set forth in the regulations at 8 CFR 223.2. The applicant must pay a filing fee of $135 and submit supporting documentation, including proof of refugee status.
State-by-State Variation
While the INA governs the rules for traveling abroad while a green card application is pending, some states have their own specific requirements and regulations. For example, California requires applicants to demonstrate that they have a valid reason for traveling abroad, such as a family emergency or business necessity. The applicant must submit supporting documentation, including proof of financial support and a valid passport.
New York, on the other hand, requires applicants to appear for an interview with the USCIS before being granted advance parole. The applicant must pay a filing fee of $575 and submit supporting documentation, including proof of financial support and a valid passport. Texas has a specific requirement that applicants must demonstrate that they have a valid passport and meet the requirements under Section 212(d)(5) of the INA.
Special Situations or Exceptions
Asylum Applicants
Asylum applicants who have filed Form I-589, Application for Asylum and Withholding of Removal, may be eligible for advance parole under Section 208 of the INA. The applicant must demonstrate that they have a well-founded fear of persecution and meet the eligibility requirements under Section 208(a) of the INA. The applicant must pay a filing fee of $0 and submit supporting documentation, including proof of asylum status.
In plain terms, this means that asylum applicants who are eligible for advance parole can travel abroad for humanitarian reasons, such as visiting a sick family member, as long as they follow the required procedures and meet the eligibility requirements. The applicant must also demonstrate that their travel will not adversely affect their asylum application, as set forth in the regulations at 8 CFR 1208.4.
VAWA Applicants
Applicants who have filed Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, under the Violence Against Women Act (VAWA) may be eligible for advance parole under Section 204(a)(1)(A) of the INA. The applicant must demonstrate that they have been battered or subjected to extreme cruelty and meet the eligibility requirements under Section 204(a)(1)(A) of the INA. The applicant must pay a filing fee of $435 and submit supporting documentation, including proof of VAWA status.
Enforcement and Consequences
The USCIS has established that applicants who are denied advance parole or who are found to have abandoned their green card application may be subject to removal proceedings under Section 240 of the INA. The applicant may be required to appear before an immigration judge and may be subject to a fine of up to $2,500. The applicant may also be barred from re-entering the United States for a period of up to 10 years.
In practice, this means that applicants who are denied advance parole or who are found to have abandoned their green card application may face serious consequences, including removal from the United States and a bar to re-entry. The applicant must carefully follow the application procedures and submit all required documentation to avoid delays or denials. The USCIS has also established that applicants who are eligible for advance parole may be subject to additional scrutiny, including background checks and interviews.
- U.S. Citizenship and Immigration Services. official immigration process guidance
- U.S. Department of State. visa and travel documentation
- Office of the Law Revision Counsel. relevant federal immigration statute
