DHS Changes Travel Rules for H & L Green Card Applicants

In a major development, the Department of Homeland Security announced a significant change to the travel restriction currently placed on certain applicants for permanent residence, commonly referred to as green card applicants. The new rule, published on October 31 and effective November 1, 2007, only applies to L-1/L-2 and H-1B/H-4 visa holders who have applied for permanent residence.

Under existing regulations, H or L adjustment of status applicants are deemed to have abandoned their previously filed application if they depart the United States without being in possession of the I-797 filing fee receipt for the green card application. The new rule eliminates the requirement that such individuals obtain the filing fee receipt before departing. DHS acknowledged that the principal reason for the change was their inability to issue filing fee receipts on a timely basis combined with enhanced technology that allows immigration inspectors to access the DHS data base to confirm the circumstances of a pending application as well as eligibility for admission.

NOTE:

Other than H and L visa holders, all other applicants for adjustment of status should not leave the US unless they are in possession of "advance parole" travel authorization.

Secondly, under the regulations those in H and L status who plan to travel and reenter before obtaining advance parole must satisfy the following requirements:

Be in possession of a valid passport containing an unexpired H or L visa stamp (except Canadians who are visa exempt and only have an I-94 card).
 
Be returning to resume employment with the same employer for which they had been previously authorized to work as an H-1B or L-1 nonimmigrant.

Be otherwise eligible for H-1/H-4 or L-1/L-2 nonimmigrant status.

The new rules are extremely welcome and long overdue even though they are limited to just H and L visa holders. Individual circumstances may impact the decision of some individuals with pending green card applications on whether to travel before receiving the advance parole authorization. We encourage our clients to check with us concerning any questions they may have on this issue.