As many people may already be aware, U.S. immigration laws allow applicants for adjustment of status to permanent residence the opportunity to temporarily travel outside of the United States while their green card application remains pending. A person whose application for a green card is pending and wishes to travel abroad, may file an application for a travel document, also known as "Advance Parole", with USCIS and leave the United States temporarily once the document is issued. Such permission must be sought prior to the departure, or the application with USCIS will be abandoned and the applicant may not be permitted to return to the United States (Please note: This requirement does not apply to people who have applied to adjust to permanent resident status and are maintaining H-1 status (temporary workers in specialty occupations) or L-1 status (intra-company transferees), or their dependents in H-4 or L-2 status.)

It is important to understand, however, that travel outside the U.S. may have severe consequences for certain aliens who are in the process of adjusting their status. Such aliens may be found inadmissible upon their return to the U.S., their applications may be denied, or both. Under U.S. immigration law, aliens who depart the United States after being unlawfully present in the United States for certain periods can be barred from admission, even if they have obtained Advance Parole. Those aliens who have been unlawfully present in the United States for more than 180 but less than one year, and then depart from the U.S., are inadmissible for the next three years. Those aliens who are unlawfully present in the United States for more than a year, and then depart from the U.S., are inadmissible for the next ten years.

What exactly is unlawful presence? Unlawful presence begins to accrue when the authorized period of stay (noted on the I-94 Departure Record) has expired and the person fails to timely file a request for extension or change of nonimmigrant status. If he or she timely files an extension of stay or change of status, then unlawful presence does not accrue, even after the I-94 expires, for as long as the petition remains pending. If that petition is ultimately approved, then there is no unlawful presence. If it is ultimately denied, then unlawful presence starts to accrue on the date the denial notice is issued. Similarly, unlawful presence does not accrue as long as an application for adjustment of status to permanent residence status is pending before USCIS.

There is often a misconception that Advance Parole will ensure a person's reentry into the U.S. as long as it has been approved, no matter what that individual's status in the U.S. was prior to the departure. This is not true. Advance Parole may be approved as long as an application for adjustment of status has been filed and remains pending with USCIS, however, it does not guarantee admission into the United States. Those who have obtained Advance Parole are still subject to the immigration inspection process at the port of entry, and if they are found to have triggered the 3 or 10-year bar to reentry for having left the U.S. after a period of unlawful presence, they will be denied entry and their green card application will be denied. It is, therefore, advisable for anyone who has concerns about their admissibility to contact an immigration attorney before making foreign travel plans.