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Leaving the USA is easy. Getting back in may be hard | Print |  Email
Thursday, 18 February 2010

Q: I filed an adjustment of status application to become a legal permanent resident in the US, based on my marriage to a US citizen. I received a card authorizing me to work legally in the US, and I understand that I probably will have my green card interview fairly soon. Could I now fly back to Ireland for a couple of weeks before I actually receive US permanent resident status? I haven’t been home in a couple of years, and I want to introduce my wife to my family.

A: The fact that US Citizenship and Immigration Services (USCIS) granted you authorization to work legally in the US while your adjustment of status (AOS) application is pending does not mean that it is safe for you to travel abroad just yet. You did not specify your status before you married a US citizen, but we think, since you have not been home in a few years, that you may be undocumented.

If you have been unlawfully present in the US for more than 180 days but less than a year, and you depart the United States (including even a day trip to Canada or Mexico) before you are granted legal permanent resident status, you face a three-year bar from re-entering the US. Unlawful presence for more than a year triggers a ten-year bar. These bars would apply to you despite your marriage to a US citizen and pending AOS application. Likewise, the fact that you may have US citizen children who were born here does not alter the situation. Therefore, it is crucial that you remain in the US until you are granted legal permanent resident status at or after your green card interview in the USCIS offices here. Then you will be able to travel abroad for periods up to six months and return to the US with no problem and no need to apply for permission. (A green card holder who travels abroad for more than six months at a time is in a different situation and should obtain legal advice before such a trip.)

In general, AOS applicants who have not been unlawfully present for 180 days or more must apply to USCIS to obtain permission to depart the US without cancelling their application and re-enter the US before traveling abroad. This permission is called “Advance Parole.” IIC can assist with the preparation and filing of the required form. Likewise, readers should contact us if they want to travel abroad but have any doubt whatsoever about whether their current immigration status will allow them to return to the US. In all too many cases we receive calls from abroad from people seeking to get back to the US. Often it is too late: by departing the US after a more than six-month period of unlawful presence, they have subjected themselves to the three- or ten-year bar.

This area of immigration law can be confusing. Some people should not travel outside the US at all, others can do so if they obtain Advance Parole before their trip, and others are allowed to travel and re-enter the US without seeking any authorization from USCIS in advance. The form for Advance Parole, I-131, contains nine pages of instructions, and it is quite likely that readers will have difficulty making sense of them and applying them correctly to their specific situations. The solution? See us first.

For a free, confidential consultation on this or any other aspect of immigration law, visit one of our legal clinics advertised in The Emigrant each week.

Disclaimer: These articles are published to inform generally, not to advise in individual cases. Areas of law are rapidly changing. US Citizenship and Immigration Services and the US Department of State regularly amend regulations and alter processing and filing procedures. For legal advice seek the assistance of an IIC immigration specialist or an immigration lawyer.

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