Advance Parole vs Nonimmigrant Visa
Once your I-485 Adjustment of Status Application is filed, you are just one step away from getting your green card. However, it’s not as close as we expected. Your I-485 application could be pending for another one or two years, or even longer. As international travel is inevitable while the case is pending, many people may wonder what would be the safest way to travel.
At the time of filing your I-485 application, an I-131 application can be filed concurrently, which is an application for travel documents, such as advance parole. Like employment authorization cards (EAD), advance parole is a complimentary immigration benefit, so you can apply for it for free. More importantly, those benefits will be granted by USCIS before your I-485 application gets approved. So, you can travel internationally once your I-131 application is approved and reenter the United States using advance parole documents (approval notice or EAD card) after your journey.
Using advance parole means you don’t need to apply for or renew a nonimmigrant visa (i.e. H-1B, L-1), which sounds quite attractive, right? However, your immigration attorney will usually advise you using your nonimmigrant visa to reenter the United States if you have one. Why waste the time and money for visa stamping while I have a super “convenient” travel document?
Advance parole is not recommended primarily because of the following reasons:
1. Advance parole is an immigration benefit which can be revoked or terminated by USCIS, though it rarely happens.
2. Advanced parole is tied to your I-485 application. So, you could be out of status if your I-485 application gets denied.
3. Using advance parole could be risky for those who have an issue of unlawful presence. Those individuals may not be allowed to reenter the United States even if they hold a valid advance parole.
4. When you use advance parole to reenter the United States, the granted I-94 admission period is one year in general, and it is hard to update I-94 without leaving the U.S. and reentering again. Although your stay in the U.S. after I-94 expiry date will not be considered as unlawful presence, it is always safer to have a valid I-94 record.
Therefore, if you have a valid nonimmigrant visa like H-1B or L-1, use your visa first. If your visa has already expired, renew it if possible. Advance parole can be a back-up when an emergency happens. Nevertheless, the nonimmigrant visa we are referring to above is the so-called “dual intent” visa which allows you to have immigrant intent. The most typical dual intent visas include H-1B and L-1, and the doctrine of dual intent also extends to H-4 and L-2 dependents. Please also note that not all work visas permit dual intent, so it is always necessary to consult with an immigration attorney before you travel internationally with a pending I-485 application.
On the contrary, for those who only have pure “single intent” visas such as F-1 or B-2, using those visas to reenter the United States may trigger unnecessary inconvenience. CBP (U.S. Customs and Border Protection) officers may raise questions regarding your pending I-485 application, as you are using a visa that does not allow immigrant intent. In order to avoid such issues, you only have one option left — — using your advance parole.
Furthermore, I-485 applicants may wonder how would the advance parole affect their nonimmigrant status. Your status remains the same as long as your I-94 has not expired yet. After the expiration date of your current nonimmigrant status, you are not present in the U.S. illegally, as your I-485 application is still pending. But, of course, it is always safer to maintain a valid nonimmigrant status. However, if you use the advance parole to reenter the United States, you would be labeled as a parolee, as shown on your I-94 record. For H-1B or L-1 visa holders, if they want to change back to nonimmigrant status, their employers will need to file an extension petition.
Lastly, even though the advance parole is not perfect, something is better than nothing. Make sure you file the I-131 application concurrently at the time of filing the I-485 application. More importantly, avoid traveling before you receive your advance parole document, because the application will be denied automatically if you depart the United States before it gets approved.
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