Understanding I-140 Approval: Navigate Stays Outside the U.S. with Clarity

Moving through the process of obtaining U.S. permanent residence, an I-140 approval is a crucial step. It is an employment-based immigrant visa petition that paves the way for a green card. However, it's important to understand the implications of traveling outside the U.S. after an I-140 approval. Here, we delve into the nuances to ensure your travel and legal status compliance.

Factors Affecting Your Stay Outside the U.S.

After receiving an I-140 approval, there is no specific time limit for how long you can stay outside the U.S.

Visa Status: If you are currently in the U.S. on a non-immigrant visa like H-1B or L-1, it is crucial to maintain your visa status. Prolonged absence might cause issues when re-entering the U.S. Adjustment of Status (AOS) Applications: If you plan to adjust your status to a green card, any leave from the U.S. during the process requires special consideration. Unless you have applied for and received advance parole, your AOS application may be considered abandoned. Consular Processing: If you are opting for consular processing for your green card, you can stay outside the U.S. until your visa interview is scheduled. Once your immigrant visa is approved, you must return to the U.S.

Additional Considerations for I-140 Approval

Completing the I-140 form (employment-based immigrant visa petition) involves indicating your preference for either consular processing or applying for Adjustment of Status (AOS). Here’s a detailed look at both options:

Consular Processing

Consular processing involves applying for an immigrant visa at a U.S. consulate abroad and involves the following steps:

Advantages: Shorter processing times compared to AOS. If the National Visa Center properly forwards the approved I-140 to the consulate, an appointment could be scheduled within 15 to 18 months. H or L non-immigrants can travel freely during this waiting period, though they must have a valid nonimmigrant visa.

Disadvantages: H, O, and J nonimmigrants must maintain temporary nonimmigrant status after filing an I-140, as returning to their home country might be necessary if the application is ultimately denied. It is challenging to prove they have no intention of abandoning their U.S. residence.

Adjustment of Status (AOS)

AOS allows individuals to apply for a green card from within the U.S., providing several conveniences:

Convenience: You can file your application by mail, which is more convenient than traveling abroad for an interview.

Waiver of Interview: Many AOS applications are adjudicated solely based on the application and supporting documents, with an interview potentially waived if the CIS deems it unnecessary.

Employment Authorization: Both the principal applicant and their dependent family members can apply for Employment Authorization Documents (EADs) upon filing the AOS application. H-4, O-3, or TN nonimmigrants can also apply for EADs. Having an EAD provides the right to work and maintain nonimmigrant status. Additionally, you can apply for advance parole.

Portability: You can change jobs (even to a different employer) without interrupting your AOS application as long as you remain in the same or a similar occupation.

Police Certificates: Only an immigrant visa applicant is required to provide police certificates from every country in which they have resided for six months or more since turning 16. An AOS applicant only needs to provide fingerprints and background checks.

Conclusion: Understanding the Implications of Your Travel Plan

While an I-140 approval does not inherently restrict travel outside the U.S., it is critical to consider the implications of your travel plan. Consulting an immigration attorney can provide you with personalized advice and ensure that you do not jeopardize your immigration status.

Should you have any questions about I-140 approval or need assistance navigating the complexities of U.S. immigration law, consult with an attorney to understand the implications of your travel and to ensure you comply with all legal requirements.