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Can I leave the US and re-enter on a visitor or other non-immigrant visa when I have an immigrant petition pending?

By December 23, 2022Immigration
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A common question we get from clients is the effect of having an immigrant petition filed on your behalf on clients’ ability to enter the United States on a non-immigrant visa, such as a visitor or student.

The question is a nuanced one and the answer would depend much on the client’s individual circumstances. Let’s consider some important distinctions.

1. Have you filed an I-140 or I-130, or have you also filed an I-485?

An I-140 or I-130 is what one would call an “underlying” immigrant petition, on the basis of which a beneficiary can either apply for an immigrant visa at a U.S. consulate in a foreign country, or if the beneficiary is already in the United States in a different status, apply to adjust status (I-485) to a green card holder.

If you have only filed an I-140 or I-130 and indicated consular processing, it is technically possible to travel outside the United States and re-enter on a different non-immigrant visa. However, if you have also filed an I-485, application to adjust status in connection with the immigrant petition, you cannot leave the United States without abandoning the petition unless you apply and receive an Advanced Parole document, which gives you prior authorization to travel while the petition is pending.

2. Will you be applying for a new non-immigrant visa or be re-entering on an existing non-immigrant visa that is still valid?

Assuming that an I-140 or I-130 application on your behalf is pending, the implications will also be different depending on whether you are applying for a new non-immigrant visa or whether you are seeking to leave and re-enter the US on an existing visa that is still valid.

In other words, will you be applying for a new non-immigrant visa, such as a B1/B2 or F1, not too long after an immigrant petition has been filed and is pending? Or are you already in possession of a valid visa and is seeking to re-enter the US on the same visa after having traveled abroad?

In the first scenario, having an immigrant petition be filed on your behalf so recently and having it be pending may make it difficult for the you to obtain a new non-immigrant visa. Having the immigrant visa be filed on your behalf shows a certain degree of an intent to immigrate, and you will need to provide strong evidence of your ties to your home country to persuade the officer that you do not intend to immigrate to the U.S. at present despite the pending petition.

In the second scenario, you would likely encounter less trouble. Because you already have the valid visa, the only hurdle is the Customs and Border Protection (CBP) officer interviewing you when you arrive at the US border. Though your pending petition may be noted by the officer, immigrant intent at admission is evaluated for each visit separately. As long as you sufficiently explain your intent is to leave the US and apply at the consulate for an immigrant visa in a foreign country if and when your immigrant petition is approved, you will likely be able to re-enter the US by having shown non-immigrant intent for that particular visit.

This question is complex and the circumstances of each individual case may lead to different conclusions, so it is recommended that you consult an experienced immigration attorney if you find yourself in this situation.

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