2/11/2008

The USCIS is aware of the problem for those in H1B/H-4 and L-1/L-2 statuses who may be traveling without the I-485 receipt notice. The law requires that one have the Advance Parole (AP) in order to travel after filing the I-485. Travel abroad without the AP is regarded as an abandonment of the I-485. There is an exception to this, however, for individuals in H1B/H-4 and L-1/L-2 statuses. 

Such persons may travel in these statuses without abandoning the I-485, provided they also have the I-485 receipt notice. This latter portion, regarding the receipt notice, has generally not been enforced by the Customs and Border Protection at the airports or other ports of entry into the United States. The requirement for the I-485 receipt notice is still contained in the law, however. It has created uncertainty, therefore, given the number of I-485 filings, the delays in the issuance of receipt notices, and the time it is taking to obtain APs. 

The prior rule stated that an I-485 is deemed abandoned if an individual travels abroad without an advance parole (AP) approval, unless s/he is traveling in H1B/H-4 or L-1/L-2 status. To use this approved AP exception, however, the traveler was also supposed to carry the original receipt notice for the I-485 in order to reenter the United States. 

While the receipt notice portion of the regulation historically was not enforced, it created uncertainty and potential problems. Fortunately, as of November 1, 2007, a person is no longer required to have or to show an I-485 receipt notice in order to travel abroad and reenter using his/her H or L nonimmigrant status. 

In issuing the Final Rule, the DHS noted that it is not always possible to ensure immediate issuance and mailing of receipt notices. Delays in sending the notices create problems for applicants in H1B/H-4 or L-1/L-2 status who need or want to travel abroad. The DHS found this to be unduly burdensome and unnecessary. 

They also issued this as a Final Rule, rather than as a proposed regulation with a comment period, because it eliminates an unnecessary burden on foreign nationals, without changing the manner in which cases are adjudicated or immigration benefits are determined. The DHS wanted the rule to take effect as soon as possible, to avoid further hardships with respect to travel.