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There may be a new snag for immigrants in the employment-based green card backlog: an inability to travel outside the U.S. for three or more months at a time.
“We’re basically forcing people to be grounded,” Laura Danielson of Fredrikson & Byron in Minneapolis told Bloomberg BNA.
Green card applicants generally can’t leave the U.S. because it’s considered a sign that they’ve abandoned their intent to seek lawful permanent residence. That is, unless they apply for and receive advance parole from U.S. Citizenship and Immigration Services.
For a long time, green card seekers who were on H-1B specialty occupation or L-1 intracompany transferee visas didn’t need advance parole to travel internationally. Under a 1999 regulation, they could leave and re-enter the U.S. freely as long as their visas remained valid and they continued to work for the same employer that sponsored them for the visas.
“That practice has stopped,” said Danielson, who heads her firm’s immigration group.
Around mid-August, H-1B and L-1 visa holders started receiving denials of their advance parole applications if they left the U.S. while those applications were still pending, Rosanna Berardi of Berardi Immigration Law in Buffalo, N.Y., told Bloomberg BNA Sept. 18. “This is a huge shift,” she said.
The USCIS is citing the instructions for the advance parole form, said Berardi, who heads the American Immigration Lawyers Association’s Customs and Border Protection Liaison Committee.
AILA is aware of the issue and is talking to the USCIS to try to resolve it, according to Betsy Lawrence, the association’s director of government relations.
But the agency says nothing is different. H-1B and L-1 visa holders “are entitled to travel during the pendency” of their green card applications “as long as their visa remains valid,” a USCIS spokeswoman told Bloomberg BNA Sept. 22.
Leaving the country before an advance parole application is decided is considered abandonment of that application, the spokeswoman said. But that doesn’t apply to H-1B and L-1 visa holders because they don’t need advance parole at all, she said.
“Neither regulation nor policy has changed,” she said.
That’s not the experience of at least some immigration attorneys. What’s more, it’s taking the agency longer to adjudicate advance parole applications than in the past, Danielson said Sept. 14.
Advance parole applications used to be approved the same day they were handed in, but now it’s taking upwards of 90 days, she said.
The affected workers are “often pretty high-level employees” who may need to travel overseas to conduct business, Danielson said. There are family emergencies that require international travel as well, she said.
“Business people travel a lot,” and usually on short notice, Berardi said. A wait time of three to four months just isn’t reasonable because “business is so fluid and so fast,” she said.
Moreover, it could wind up having a chilling effect on businesses’ willingness to sponsor workers on temporary visas, Berardi said.
“It’s so frustrating that business professionals that are here trying to do the right thing always seem to be the target of rules that punish them,” she said. The problem with a policy is that it “can change on a dime” and can be “easily ignored if somebody wants it to be,” she said.
But “it’s always been like that, this isn’t unique to the Trump administration,” Berardi said.
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