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Travel by Adjustment of Status Applicants
by H. Ronald Klasko

Applicants for adjustment of status to permanent residence have restricted ability to travel outside of the United States until they are approved for permanent residence. Most applicants have no choice -- if they want to travel internationally, they must apply for and obtain an advance parole travel document. Applicants for permanent residence who maintain valid H-1B, L-1, H-4 or L-2 status have a choice: they may either travel on their valid H or L visas, or they may obtain advance parole travel documents and employment authorization documents. The purpose of this analysis is to compare the relative advantages and disadvantages of advance parole travel and travel with H or L visas.

Note: This analysis is only for use by adjustment of status applicants maintaining valid H or L status.

Advantages of Obtaining Advance Parole

  1. The advance parole travel document eliminates the need to obtain a visa while the applicant is traveling outside of the U.S.
  2. Unlike the H-1B or L-1 alien, an applicant with advance parole and an employment authorization document is able to work for any employer (or multiple employers).
  3. With advance parole and employment authorization, it is not necessary to extend H or L status, which can save significant fees.
  4. Foreign nationals are limited to a period of 5 to 7 years in the United States (depending upon whether they are H-1B, L-1A or L-1B) in H or L status. If the alien decides to work with employment authorization and the employer terminates H or L status, any remaining time in H or L status is not lost in the event there are problems in completing the permanent residence process. In such event, a new H or L petition would be required.
  5. The applicant maintaining H or L status may need to prove that she has maintained valid H or L status during the pendency of the adjustment of status process. This requirement is eliminated for the applicant with employment authorization.
There is good reason to obtain advance parole and employment authorization, so that the applicant has it in case he needs it. Obtaining advance parole and employment authorization does not preclude the foreign national from traveling with the H or L visa and obtaining some of the advantages that relate to such travel. The following are some of those advantages:

Advantages of H or L Travel

  1. Upon arrival at an airport or land port of entry, foreign nationals traveling with advance parole are usually referred to a second INS inspector for a more careful review of their documents. This is far less likely to happen to the applicant with a valid H or L visa.
  2. If the adjustment of status application is denied or for some reason abandoned, the applicant who maintains H or L status continues to have legal status following the denial or abandonment. Other applicants are subject to removal from the U.S.
  3. There are delays and expenses involved in applying for advance parole and employment authorization.
  4. An applicant maintaining H or L status is able to extend status while the adjustment application is pending. In addition, he is able to work during the pendency of the extension application. An adjustment applicant whose employment authorization document expires is not able to work during the pendency of the extension application and until the new employment authorization document is approved.
  5. The applicant maintaining H or L status is able to travel immediately after the filing of the adjustment application. Advance parole applications may be delayed 2 or 3 months, during which time the applicant is unable to travel internationally.
Travel by Spouses and Children
  1. If a spouse or child is overseas at the time the principal applicant files for adjustment of status, the spouse or child should be able to obtain an H-4 or L-2 visa to enter the United States and ultimately apply for adjustment of status either concurrently with the principal applicant or as a following to join family member. This may not be possible if the applicant has failed to maintain H or L status.
  2. If the spouse and child are not working, they can enter on their visas or with advance parole.
  3. If the H-1 or L-1 principal is working for an employer in addition to or other than the H or L petitioning employer, the spouse should obtain advance parole. If the principal is in valid H-1 or L-1 status but entered with advance parole, the spouse can still enter with the H-4 or L-2 visa and does not need to obtain advance parole.
  4. If the L-2 is working in the U.S., he can enter on the L-2 visa (assuming he has an employment authorization document) or with advance parole and employment authorization. If the H-4 is working in the United States, she should have an employment authorization document and enter on advance parole.


About The Author

H. Ronald Klasko is a partner and chair of the immigration law group at Dechert. A former national president of the American Immigration Lawyers Association (AILA), he served as its general counsel from 1996 to 1999. Ron is the 1999 recipient of the AILA Founders Award, bestowed on the individual or group who has the most important impact on immigration law. He has been a member of the board of governors of AILA since 1980 and formerly served as chair of the Association's Philadelphia Chapter. He has also served as national chair of the Business Immigration and the Task Forces on Employer Sanctions, H and L (business) Visas and Labor Certifications. He is the co-author of the two-volume Employers' Immigration Compliance Guide, a leading publication on the immigration laws affecting employers. A former adjunct professor of immigration law at Villanova University Law School, Ron is a frequent lecturer on immigration law and has appeared on national and local television and radio discussing immigration law issues. Ron has been selected for inclusion in Best Lawyers in America, Who's Who in America, Who's Who in American Law, and Who's Who of Emerging Leaders in America.


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