Immigration Site

If I already have a valid immigration status in the US, is it advisable to leave the US while waiting for USCIS to process a I-130/I-485 application for adjustment of status?

My wife and I married in October, and I am getting my paperwork together to apply for a green card. My mother is dying of cancer back in Australia, and I need to go back there for an indefinite period to take care of her.

I have been legally present in the US on an H1B for a couple of years. I have a current H1B visa stamp in my passport, which expires in June. (So does the H1B immigration status, but I could still extend it by a couple of years.)

I have received contradictory information about whether it is advisable to leave the US during the application for the green card. On the one hand, Brays Fiance and Marriage Visas says You can travel, but must use great care. If you simply get up and go without getting official permission, the law says you will have given up (or abandoned, in USCIS terminology) your adjustment of status application. You will need to start all over. It goes on to explain how to get Advance Parole. The trouble is that Im leaving the country on Dec 20, which will probably make getting Advance Parole tricky. On the other hand, a consultant at the International Students and Scholars Office at the university where Im working told me that this does not apply to me, because I already have valid visa status in the US. I would like this to be true, because I gather that applying for the green card from overseas will take a lot longer. However, I dont know what the truth is, and dont know where to start looking. I would be grateful for any pointers to the relevant laws and regulations.

Sorry to read about your mothers battle with cancer. Here is a solution, if you havent submitted the paperwork for the green card, DONT SEND THEM because as soon as you leave the US without advance parole, your green card application is considered abandoned and will be denied. However, since your H1B visa is still valid, USE it to head down under until your mothers situation is resolved, hopefully some recovery because I read cancer cases are difficult.

If you already mailed your forms, then make an info pass with your local USCIS office, head there and see if they can process your advance parole on the same day or within a couple of days, because if you leave without the advance parole, you would have thrown your hard earned $1500 filing fees in the toilet.

Thanks for the advice, Al. Are there regulations in writing which imply that I will automatically be considered to have abandoned my application, or is this just the de facto USCIS policy? It would be nice to see the regulations, since I have contradictory advice at this stage. (But I will probably end up doing as you suggest anyway.)

If you have an H or L, you can leave the US without Advance Parole and your I-485 will NOT be considered abandoned. This has been USCIS regulation for only about a decade or so.