With the possibility of forward movement of cutoff dates for EB2 India in the August and/or September 2014 Visa Bulletin/s, there is the potential for approval of the application for adjustment of status (I-485) for some green card applicants from India. Attorneys at the Murthy Law Firm are often asked, "What happens if the I-485 is approved when one is traveling outside of the United States?" Our attorneys answer this question in an effort to further address concerns MurthyDotCom readers have, with the possibility that their green cards may be approved.
Key Issues When Priority Dates Become Current
It is not uncommon for one's I-485 to be approved when the applicant is outside of the United States. The EB2 cutoff date in the June 2014 Visa Bulletin for India is November 15, 2004, while China's cut off date is May 22, 2009. All other countries remain current in EB2. The U.S. Department of State (DOS) has indicated that there is a possibility of movement in the India EB2 category in August or September 2014. Before traveling abroad, one should consider options for reentering if the adjustment-of-status application is approved while s/he is out of the United States. Important considerations include the documents needed in order to be permitted to board the return flight, as well as the documents and information appropriate for the U.S. Customs and Border Protection (CBP) at the airport or other port of entry (POE).
Advance Parole and H1B/H-4, L-1/L-2
If a person has an advance parole (AP) approved prior to departure, this document can be used when boarding a flight back to the United States. Upon arrival at the POE, the AP can be presented, but if the I-485 applicant is aware that his/her approval was issued during the travel abroad, the CBP officer should be informed of this change.
The same is true for an individual without an AP, who planned to return in H1B/H-4 or L-1/L-2 status. The H or L visa and supporting documentation may be shown to airline officials in order to board the plane. Since the traveler is now a permanent resident, however, entering in nonimmigrant status is not appropriate. The CBP officer at the POE should be informed of the individual's situation when s/he reenters, if the I-485 applicant is aware that her/his approval was issued while abroad. In order to ensure that all risks are understood matters such as these should be discussed with one's attorney prior to travel.
CBP Procedures for Permanent Residents
If one is a permanent resident (green card holder), but does not have proper proof of that status, the CBP officer has several options. The CBP officer could waive the documentary requirements and allow the individual to enter as a permanent resident. Alternatively, the CBP could allow entry into the U.S. physically on a grant of parole, for purposes of a deferred inspection. This does not require possession of an AP, as it is a parole that is granted at the discretion of the CBP at the POE.
This deferred inspection means that one must return to the CBP at a later time to provide documentation of permanent resident status and to complete the POE processing as a permanent resident. This procedure is appropriate for an individual who will be able to show the CBP the green card soon after reentering the United States, because it simply needs to be retrieved from home or another location. This might also be appropriate for one whose I-485 was approved during travel, as the physical green card generally is issued within a couple of weeks after approval.
We at the Murthy Law Firm have seen instances in which CBP officers simply allow such entry on AP or in H or L status for individuals who obtain the I-485 approval while traveling abroad. This does not alter the fact that the foreign national has been approved as a permanent resident. S/he should receive the green card in the mail following the I-485 approval, and should use that document for future work and return travel into the United States, otherwise complying with all requirements applicable to U.S. permanent residents.
Suggestion: File and Obtain AP Before Departure
A foreign national who plans to travel with a pending I-485 with priority dates that are current, or that could become current during travel, needs to consider the possibility of approval while abroad. One of the easiest solutions is filing and obtaining the AP before travel. An individual who plans to travel in H1B/H-4 or L-1/L-2 status, who does not have a visa stamped in the passport, runs a risk if the I-485 is approved while s/he is outside the United States. Once the I-485 is approved, s/he would not be eligible for a nonimmigrant visa stamp. However, if s/he does not have AP or the physical green card, there is no document that allows her/him to board the return flight. While there are some potential options to address this problem, it is likely to cause a delay in one's return to the United States.
Conclusion
The potential for long-awaited movement in the EB2 cutoff dates in the DOS Visa Bulletin brings a chance for good news with the possibility of the I-485 approval for some long-pending EB2 applicants from India. As with many aspects of the immigration process, it is important to plan in advance, and to get proper immigration advice to minimize risks of delays and other complications. At the Murthy Law Firm, we understand the many complex nuances of U.S. immigration law, and enjoy helping individuals overcome these hurdles to the satisfaction of the law.
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