Can I travel on a different visa while awaiting my green card application within the U.S.?

If you have a pending adjustment of status application to obtain legal permanent resident status or a green card, you need to be careful if you are considering travel outside the United States while the green card application is pending. We discuss the general eligibility criteria for adjustment of status here.

The problem is that even if you are permitted to travel on another nonimmigrant status/visa, such travel can jeopardize your green card application. Immigration regulations specifically indicate that departure from the United States while an adjustment of status application is pending shall be deemed an abandonment of the application constituting grounds of termination of the proceeding by reason of the departure. See 8 CFR section 245.2(a)(4)(ii).

The solution in this scenario if you are contemplating travel while an adjustment of status application is pending is to take advantage of the adjustment of status process which allows you to apply for what is known as “Advanced Parole” which is a travel authorization that will allow you to travel outside the United States and not risk jeopardizing the adjustment of status application. Just understand, that travel and return to the United States must be using this travel authorization and you must not attempt to reenter using another nonimmigrant visa. You must also not travel until you actually receive the travel authorization.

Finally, another fact to take note of is that the regulations do allow for exceptions to a very few number of visas where travel only under authority of those limited visas will not result in abandonment of the adjustment of status application. Consultation with an experienced immigration attorney will allow you to confirm whether you will be allowed to travel using one of those visas covered by the exception. We will also cover these exceptions here.