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Adjustment of Status Travel Advisory
Employees, managers, and human resource personnel all must be very mindful of special rules which govern travel abroad by foreign nationals while their application for adjustment of status to permanent resident is pending.
An applicant for adjustment of status to permanent resident, with few exceptions, abandons his or her application if she or he travels abroad during the pendency of that application without an advanced parole travel authorization issued by the USCIS before he or she travels abroad. In other words, if the foreign national leaves the United States without an advance parole travel document in hand, he or she can be subject to detention and be placed in removal proceedings when attempting to re-enter; if eligible, he or she must re-file for adjustment of status to permanent resident.
A significant exception to this rule applies to certain H-1B specialty workers and L-1 intracompany transferee employees. This exception, however, has very specific requirements in order to apply. In particular, an adjustment of status applicant may return to the United States in L-1 or H-1B status without an advance parole document if upon returning the foreign national is eligible for H or L status, is coming to resume employment with the same employer for whom he or she has been previously authorized by USCIS to work as an H-1B or L-1, and is in possession of a valid H-1B and L-1 visa in his or her passport (if required) and the original I-797 receipt notice for the adjustment of status application.
Many foreign nationals and their employers do not sufficiently appreciate the fact that all of these requirements must be satisfied in order for an H-1B or L-1 employee who has filed an adjustment of status application to travel abroad without risk upon return. The fact that the U.S. Customs and Border Protection (CPB) officials frequently admit H-1B and L-1 visa holders without the required adjustment of status receipt has added to the confusion. The law on this, however, is clear. Without further guidance from the agency, and in light of the anticipated delays in the issuance of adjustment of status filing receipts from USCIS—delays that may be as long as up to two or three months—human resource personnel, managers, and employees are cautioned to keep these requirements in mind. If a foreign national must travel without the required documentary evidence, it is advised that he or she consult with an attorney.