Skip to main content

I-131 based on Pending I-485

New York, NY |

Is it possible to travel on an I-131 if your adjust of status application is still pending? I over stayed my B-2 visa in 2005 and my adjust of status application is pending. Would traveling on an I-131 in my situation trigger the 10 year ban?

Attorney Answers 3

Posted

Yes you can travel No problems under current case law. File the I-131, once it is approved you will be able to travel. This travel will not trigger the unlawful presence bar.

The answer provided here is general in nature and does not take into account other factors that may need to be reviewed for a more precise answer. You should consult with an immigration attorney before taking any action. The answer here is not intended to create an attorney-client relationship.

Mark as helpful

4 lawyers agree

3 comments

Asker

Posted

What is the current case law?

Jennifer Doerrie

Jennifer Doerrie

Posted

There were a couple recent decisions issued by the Board of Immigration Appeals relating to travel on advance parole and its affect on the unlawful presence bars. However, it is possible that the I-131 may not be approved due to the prior overstay situation, and it also is possible that there could be complications with travel even with an approved I-131. Thus, unless there is some extremely compelling reason to need to travel, Mr. Shusterman's recommendation to wait until your adjustment application is approved and residency is granted is the safer course of action.

Alexander Joseph Segal

Alexander Joseph Segal

Posted

I get this question a lot and run into resistance on the part of my colleagues to give the answer you did. Meanwhile, many immigrants are very eager to see their families, especially those who could not have traveled home for years. For them, that BIA decision you are referring too, was a real boon. Many of my clients have gone and returned without incident. I think your answer was very true for those who are returning on advance parole to pursue the application they had filed prior to departure and pose no other inadmissibility grounds.

Posted

If you overstayed over 180 days, you might be subject to either a 3 or 10 year bar if you traveled outside the U.S. before you obtained a green card. It's not altogether clear, but why take the risk?

---------
Carl Shusterman, Esq.
Former INS Trial Attorney (1976-82)
Board Certified Immigration Attorney (1986 - Present)
Schedule a Legal Consultation - Know Your Rights!
600 Wilshire Blvd., Suite 1550
Los Angeles, CA 90017
(213) 394-4554 x0
Web: www.shusterman.com (English)
www.inmigracion-abogado.com (Spanish)

(213) 394-4554 x0 Mr. Shusterman is a former INS Trial Attorney (1976-82) with over 35 years of immigration experience. His response to your question is general in nature, as not all the facts are known to him. You should retain an attorney experienced in immigration law to review all the facts in your case in order to receive advice specific to your case. Mr. Shusterman's statement above does not create an attorney/client relationship.

Mark as helpful

1 found this helpful

15 lawyers agree

Posted

There are some factors that I would need to know to be more definitive in my answer, such as your age during your period of overstaying. But, in general, if you overstayed your B-2 visa for 180 days or more before filing your adjustment of status application then your departure from the United States will trigger a 3 year bar to re-entry. If you overstayed for one year or more you will be barred from re-enetring the United States for 10 years. Just going by the facts you laid out, it would be extremely risky to travel prior to the approval of your adjustment of status application .

Mark as helpful

Immigration topics

Top tips from attorneys

What others are asking

Can't find what you're looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer

Browse all legal topics