Travel Abroad After Filing I-140: Is It Possible?

Whether or not you can travel abroad after filing the I-140 form depends on your current status. If you have a valid H-1B visa or any other visa with dual intent, you can generally travel and re-enter the US. However, for other visas, travelling may put your permanent residency application in jeopardy.

For example, if your current status is F-1, F-1 OPT, or F-2, you are advised not to travel internationally once a petition requesting permanent residency has been filed, as this can impact your ability to re-enter the US. This is because F status is a non-immigrant status that requires beneficiaries to establish non-immigrant intent (i.e. a residence abroad they do not intend to abandon) each time they request admission or re-admission.

Similarly, if your current status is J-1 or J-2, you are advised not to travel internationally once a petition requesting permanent residency has been filed, as this may impact your ability to re-enter the US.

On the other hand, if your current status is H1B or H-4, a pending or approved petition I-140 should have no impact on your ability to enter or re-enter the US. This is because H status is a dual intent status that permits beneficiaries to have either immigrant or non-immigrant intent.

Travel outside the US with a pending I-140

The I-140 form is what employers use when petitioning the government to give a person work-related citizenship. This process is similar to getting a work visa when hiring talent from offshore locations.

The answer depends on your current status.

If you are on an L-A, L-1B, H-1B, or H-4 visa, you are in the best situation. L and H visas are dual-intent visas, meaning the US does not require you to show non-immigrant intent while entering or re-entering the country. Therefore, if you are a holder of a valid L or H visa, the I-140 petition does not impact your H visa or your ability to re-enter the country in H status.

If you are on a B-1, B-2, J-1, J-2, F-1, F-1 in OPT, or F-2 visa, you are generally not advised to travel. These visa categories are non-immigrant intent visas, meaning the US considers you to have a residence abroad where you intend to return. While filing the I-140 does not affect your F or J status, it may impact your ability to re-enter the country in that status. You may be rejected at the port of entry, so it is recommended to consult an immigration lawyer before travelling.

In general, the I-140 decision will not affect your underlying H1-B status. However, it is important to ensure that you have a valid H1-B visa prior to your trip. It is recommended to contact your company's US immigration attorney for advice.

Impact of I-140 filing on non-immigrant intent visas

The I-140 form is the first step in the EB-2 NIW process for obtaining a green card. It is an employment-based immigrant petition, and once approved, the applicant can move on to the second stage of obtaining a green card.

The impact of filing an I-140 on non-immigrant intent visas depends on the type of visa held by the applicant.

Dual Intent Visas (L and H Visas)

If you are on an L-A, L-1B, H-1B, or H-4 visa, the I-140 petition will not impact your ability to re-enter the US. This is because L and H visas are dual-intent visas, meaning the US does not require you to show non-immigrant intent when entering or re-entering the country.

O-1 Visa

The O-1 visa is a non-immigrant visa that does not require the applicant to have a residence to return to. The US government considers O-1 visas as dual-intent visas, and filing for a green card will not be grounds for rejecting re-entry to the US.

Non-immigrant Intent Visas (J, F, B Visas)

For those holding B-1, B-2, J-1, J-2, F-1, F-1 in OPT, or F-2 visas, it is generally not advised to travel. These visas require the holder to establish non-immigrant intent, meaning they must demonstrate a residence abroad that they do not intend to abandon.

While filing an I-140 does not directly affect F or J status, it may impact the ability to re-enter the US with that status. This is because it may be challenging to establish non-immigrant intent with a pending I-140 petition. There is a risk of being rejected at the port of entry, so it is recommended to consult an immigration lawyer before making travel plans.

TN Visa

If someone on a TN visa has filed an I-485 application to adjust their status, this indicates a clear intent to remain in the US permanently. The TN visa holder cannot travel on their TN visa without abandoning the I-485 application and will be unable to extend their non-immigrant status in the US.

In summary, the impact of filing an I-140 on non-immigrant intent visas depends on the specific type of visa held by the applicant. While some visas, like L and H visas, are unaffected, others, such as F and J visas, may face challenges when trying to re-enter the US. Consulting with an experienced immigration attorney is advisable to fully understand the implications of filing an I-140 on non-immigrant intent visas.

Dual intent visas and I-140

Dual intent visas allow foreign nationals to be temporarily present in the United States with the intention of possibly immigrating to the U.S. permanently. This is significant because most nonimmigrant visas require that the visitor demonstrate a nonimmigrant intent. Therefore, attempting to adjust status to permanent resident with other nonimmigrant visas can potentially trigger long-term immigration problems.

Dual intent visas are:

• L and H visas
• O-1 visa

If you are on an L-A, L-1B, H-1B, or H-4 visa, you are in the best situation. This is because L and H visas are dual intent visas. In other words, the US does not require you to show non-immigrant intent while entering or re-entering the country. Therefore, if you are a holder of a valid L or H visa, the I-140 petition does not impact your H visa or your ability to re-enter the country in H status.

The O-1 visa allows certain individuals with extraordinary abilities to work in the United States. On one hand, this is a non-immigrant visa and is therefore temporary. On the other hand, it does not require the applicant to have a residence to go back to. The U.S. government considers O-1 visas as dual intent visas. Filing for a green card cannot be used to reject a person when re-entering the country.

If your current status is H1B or H-4, H is a dual intent status that permits a beneficiary to have either immigrant or non-immigrant intent. A pending or approved petition I-140 or I-130 should have no impact on an H holder's ability to enter or re-enter the U.S. in H status.

Adjustment applicants who are in valid H-1B status, and their dependents, can travel abroad and reenter the United States in H status while an I-485 is pending, without having to obtain advance parole. The H1B must still be eligible for H status and returning to the previously approved employer. All travellers must have a valid H1B/H4 entry visa.

Re-entry to the US with a pending I-140

Whether or not you can re-enter the US with a pending I-140 depends on your current status.

Dual intent visas (L and H visas)

If you are on an L-A, L-1B, H-1B, or H-4 visa, you are in the best situation. L and H visas are dual intent visas, meaning the US does not require you to show non-immigrant intent while entering or re-entering the country. Therefore, if you are a holder of a valid L or H visa, the I-140 petition does not impact your ability to re-enter the country in H status.

O-1 visa

The O-1 visa allows certain individuals with extraordinary abilities to work in the United States. This is a non-immigrant visa and is therefore temporary. However, it does not require the applicant to have a residence to go back to. The United States government considers O-1 visas as dual intent visas, so filing for a green card cannot be used to reject a person when re-entering the country.

Non-immigrant intent visas (J, F, B visas)

If you are on a B-1, B-2, J-1, J-2, F-1, F-1 in OPT, or F-2 visa, you are generally not advised to travel. These visa categories are non-immigrant intent, meaning the US considers you to have a residence abroad where you intend to return. Filing for I-140 does not affect your F or J status but may impact your ability to re-enter the country in that status. This is because it may be difficult to establish non-immigrant intent if an I-140 has been filed. You may be rejected at the port of entry, so it may be wise to consult an immigration lawyer before travelling.

Travel outside the US with an approved I-140

The I-140 form is what employers use to petition the US government to give a person work-related citizenship. This process is similar to getting a work visa when hiring talent from offshore locations. The I-140 form is submitted to the United States Citizenship and Immigration Service (USCIS) by a prospective employer/company on behalf of the applicant.

Once your I-140 work visa is approved, you are able to travel in and out of the US. Approved applicants can travel back home for short periods, take vacations, etc. However, it is not advisable to travel too soon after approval. The US government requires applicants to establish a residence abroad that they have no intention of abandoning. Therefore, it is important to have an established residence before travelling.

The type of visa you hold matters when it comes to travelling with an approved I-140. If you are on an L-A, L-1B, H-1B, or H-4 visa, you are in the best situation. L and H visas are dual intent visas, which means the US does not require you to show non-immigrant intent while entering or re-entering the country. Therefore, if you are a holder of a valid L or H visa, the I-140 petition does not impact your ability to re-enter the country in H status.

On the other hand, if your current status is F-1, F-1 OPT, or F-2, you are advised not to travel internationally once a petition requesting permanent residency has been filed. F status is a non-immigrant status that requires beneficiaries to establish non-immigrant intent (a residence abroad they do not intend to abandon) each time they request admission or re-admission. While filing an I-140 does not impact the beneficiary's current F status, it can impact their ability to travel and re-enter the US in F status due to the intent required.

Similarly, if your current status is J-1 or J-2, you are advised not to travel internationally once a petition requesting permanent residency has been filed. J status is a non-immigrant status that requires beneficiaries to establish non-immigrant intent each time they request admission or re-admission. While filing an I-140 does not impact the beneficiary's current J status, it can impact their ability to travel and re-enter the US in J status due to the intent required.

In summary, travelling during the green card process can be complex and depends on your specific situation. Generally, individuals with valid visas with dual intent should have no issues travelling with an approved I-140. However, those with non-immigrant intent visas such as F-1 or J-1 may face problems when re-entering the United States. It is always recommended to consult with an immigration lawyer before making travel plans to ensure you understand the risks and requirements for your specific situation.

Frequently asked questions