Ask an Immigration Lawyer: how to leave and come back legally

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Each week, immigration attorney Aggie R. Hoffman will answer questions about immigrating to the United States from those submitted by our readers.

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My immigration residency case has been pending for more than one year and I would like to visit my parents abroad. How can I get a permit to leave the country and come back legally?

A legal question almost always results in another question, or in the answer, “That depends.” I will give you the short answer and then the caveats.

If you have filed an Application to Adjust Status (form I-485), you are eligible to apply for permission to travel; however, it does not mean that you should, because it can be a test for the unwary. Back to the short answer. If you leave the U.S. without permission from the CIS, you abandon your I-485 and may not return to the U.S. (unless you have an H-1B or L visa). This means that you would have to process your green card at a U.S. consulate abroad. This could take six months or longer during which time you would be stuck outside the U.S.

To preserve your right to re-enter the U.S., you must file an Application for Travel Document (form I-131). This is a dual purpose application because it is used both for obtaining a refugee travel document and advance parole. In the case of travel during the I-485 period, you want to omit the sections that have to do with parole.

Parole gives you permission to leave the U.S. and return without abandoning your I-485. However, your return is in parole status. This is a much weaker status than you received when you entered the U.S. with a visa. Parole is not an “entry” into the U.S. within legal terminology. Parole means that you are at the border (airport) , trying to get in. If the I-485 is approved, you become a legal resident. However, if it is denied, you are not in the U.S. and may find yourself before an immigration judge as the government attempts to exclude you from entering. Parole puts you in a much weaker position that you were when you entered with a valid visa.

What if you entered without a visa? It may seem that you have nothing to lose by applying for parole, because you never entered with permission in the first place. In fact, the CIS will grant the parole if you have an I-485 pending. However, you may be creating a much bigger problem for yourself because chances are that you have been in U.S. illegally for some time. A penalty provision of the immigration law provides that a person who has been unlawfully present in the U.S. for six months and more and leaves, may not re-enter for 3 years. One who has been illegally present for one year or more and leaves, may not be readmitted for 10 years.

The biggest problem is that anyone may file the I-131, even if (s)he has been illegally present. The form does not ask for that information, and parole will be granted if an I-485 is pending. Upon return from the trip, parole will also let you into the country. The shock does not come until later when you are at the I-485 interview and the I-485 is denied because you are inadmissible to the U.S. for 3 or 10 years. This will be the result even if you are an applicant under 245(i).

The safest advice is “Don’t travel until your I-485 has been approved.” If you must travel, consult an experienced immigration lawyer to assure you do not fall into traps.

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CAVEAT: The above is not a complete legal analysis, does not constitute legal advice, nor should it be construed as such. For a case specific analysis, consult an experienced immigration attorney for a private and extensive review of the facts of your case.

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