Should Green Card Applicants Use an H-1B Visa or Advance Parole Document for International Travel?

Applicants for adjustment of status receive a special permission to return from international travel called Advance Parole (AP).  If you have an approved, valid AP travel document, you may use it to re-enter the U.S. without a visa.  In fact, most adjustment of status applicants must use an AP travel document for international travel, unless they possess an H-1B and L-1 visa (or dependent H-4 and L-2 visas).  Advance parole is certainly more convenient because you  can skip the H-1B visa process and possible delays at a U.S. Consulate and quickly return to the U.S. by flashing your AP document at the airport.

However, green card applicants in H-1B status often ask whether they should use advance parole.  While the answer depends upon the individual circumstances, use of advance parole should be considered carefully if you have the option of using an H-1B visa for international travel.  Here’s what you should know about using AP:

• If you enter the U.S. using AP, you are no longer in H-1B status and any dependents cannot enter in H-4 non-immigrant status.  Ensure that all applicants in your family travel using the same type of document to return, i.e. either H-1B/H-4 visas or AP.
• Typically, those using AP could be placed into secondary inspection at the airport, which means it will take longer to be cleared to enter the U.S.  Be prepared for that longer wait if you enter with your AP instead of your H-1B visa.
• To use AP to re-enter, the AP application must be approved before you leave the US.  Currently, the USCIS can take 6 to 14 months to issue the AP document.
• If your adjustment of status application is denied, you will retain your lawful H-1B visa status, which is a huge advantage of using your H-1B visa to travel internationally.  Said another way, if the adjustment application is denied,  you will no longer have any legal status to remain in the U.S. unless your maintained your H-1B status.  Also, denial of your adjustment of status automatically terminates your EAD and AP so you will have no work authorization to continue working.  If you maintain your H-1B status by using the H-1B visa for international travel, rather than AP, you can continue working even if your adjustment of status application is denied.
• Sec 245K protection, which forgives you for previous status violations of less than 180 days, is one of the benefits of re-entering with H-1B status. Entry with AP does not give rise this protection because entry with Advance Parole is not an “admission” for Sec 245K purposes.  However, entry in H-1B status is an admission that triggers the 180 days of adjustment of status “protection” that Sec.245K offers.

Overall, there are many reasons in favor of using an H-1B visa, rather than AP.  However, the decision should be made only after consultation with your attorney.

This article is provided as an educational service and is not legal advice. Consult with an attorney for your specific circumstances. For a comprehensive evaluation of your immigration situation and options, you are invited to call us at 214-393-4917 or complete our contact form.