Spouse Travel: Post I-140 Filing

Whether or not your spouse can travel abroad after you've filed the I-140 form depends on a few factors. The I-140 form is used to classify a noncitizen as someone who is eligible for an immigrant visa based on employment. The type of visa your spouse has will determine whether they can travel abroad. For example, if your spouse has an L or H visa, they are considered dual-intent visas, meaning your spouse can travel and re-enter the US without affecting their visa status. However, if your spouse has a non-immigrant intent visa, such as a B-1, B-2, J-1, J-2, F-1, F-1 in OPT, or F-2 visa, they are generally not advised to travel as it may impact their ability to re-enter the country. It is recommended to consult with an immigration lawyer before making any travel plans to ensure there are no issues with your spouse's visa status.

Travel with F, J, or B visas is not advised

Generally, you can travel and re-enter the US if you have a valid H-1B visa or any other visa with dual intent. However, for other visas, your permanent residency application may be put in jeopardy.

If you are on an F, J, or B visa, you are generally not advised to travel while your I-140 is pending. This is because these visas are non-immigrant visas, meaning that the US considers you to have a residence abroad where you intend to return. Filing for an I-140 does not affect your F, J, or B status, but it 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, for example, by a Department of Homeland Security officer at the airport. Therefore, it may be wise to put a pause on travel plans or consult an immigration lawyer before taking a trip.

Impact on F status

F status is a non-immigrant status that requires that each beneficiary establishes non-immigrant intent (a residence abroad they do not intend to abandon) each time they request admission or re-admission in F status. While filing an I-140 or I-130 requesting permanent residency does not impact a beneficiary's current F status, it can impact an F beneficiary's ability to travel and re-enter the US in F status due to the intent required for F status. For this reason, people who are currently in F status are advised not to travel internationally once a petition requesting permanent residency has been filed.

Impact on J status

J status is a non-immigrant status that requires that each beneficiary establishes non-immigrant intent (a residence abroad they do not intend to abandon) each time they request admission or re-admission in J status. While filing an I-140 or I-130 requesting permanent residency does not impact a beneficiary's current J status, it can impact a J beneficiary's ability to travel and re-enter the US in J status due to the intent required for J status. For this reason, people who are currently in J status are advised not to travel internationally once a petition requesting permanent residency has been filed.

Travel with L or H visas is fine

If you are on an L-A, L-1B, H-1B, or H-4 visa, you are in a favourable situation regarding travel while Form I-140, Immigrant Petition for Alien Worker, is pending. This is because L and H visas are dual-intent visas, meaning that 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.

H visas are dual-intent visas, which permit a beneficiary to have either immigrant or non-immigrant intent. This means that visa holders are not required to show non-immigrant intent (a residence abroad they do not intend to abandon) to enter or re-enter the United States. Thus, a pending or approved I-140 petition should have no impact on an H visa holder's ability to enter or re-enter the US in H status.

Adjustment applicants who are in valid H-1B status, and their dependents, can travel abroad and re-enter the US in H status while an I-485 (adjustment of status) is pending, without having to obtain advance parole. All travellers must have a valid H1B/H4 entry visa.

In summary, travel with L or H visas is fine while Form I-140 is pending.

O-1 visa holders should consult a lawyer

In general, individuals can travel and re-enter the US if they have a valid H-1B visa or any other visa with dual intent. However, for other visas, the situation may jeopardise their permanent residency application.

The O-1 visa is a non-immigrant visa for individuals with extraordinary abilities in the sciences, arts, business, education, or athletics. It is also for those with a demonstrated record of extraordinary achievement in the motion picture or television industry. It is a temporary visa that does not require applicants to have a residence to return to.

The O-1 visa is considered a dual-intent visa. This means that filing for a green card cannot be used to reject a person when re-entering the US. However, there is some conflicting information about the O-1 visa's dual-intent classification. Due to this, O-1 visa holders should consult a lawyer before travelling with an adjustment of status pending.

There is published information that indicates that the US will consider that an O-1 visa holder is abandoning their I-485 application when travelling. The solution to this problem may be to travel under Advance Parole.

Additionally, when travelling on an O-1 visa, it is important to fulfil all immigration obligations to maintain your status. To re-enter the US, you will need:

• A passport that is valid for at least six months longer than your O-1 visa expiration date
• A valid O-1 visa as stamped in your passport
• I-797, Approval Notice for your O-1 visa
• Your updated employment letter showing that you are still currently employed as an O-1 holder. It must include your dates of employment, job description, and salary

In conclusion, O-1 visa holders should consult a lawyer or legal advisor before travelling with an adjustment of status pending to ensure they are fulfilling all necessary requirements and maintaining their visa status.

TN or TD visa holders advised not to travel

TN and TD visa holders are advised not to travel internationally after an I-140 is filed. This is because TN/TD status is a non-immigrant status that requires visa holders to establish non-immigrant intent, or a residence abroad they do not intend to abandon, each time they request admission or re-admission. Filing an I-140 petition requesting permanent residency can impact a TN/TD beneficiary's ability to travel and re-enter the U.S. in TN/TD status. This is due to the intent required for TN/TD status.

The TN visa is a nonimmigrant travel visa that is specifically available to Mexican and Canadian nationals under the North American Free Trade Agreement (NAFTA). It allows qualified citizens to seek temporary entry into the U.S. to engage in business activities at a professional level. The TD visa, meanwhile, is a dependent visa for the legal spouse and young children of the primary TN visa holder.

While filing an I-140 petition does not impact a beneficiary's current TN/TD status, it can affect their ability to re-enter the U.S. in that status. This is because it may be difficult to establish non-immigrant intent if an I-140 petition has been filed. As such, TN and TD visa holders are advised not to travel internationally once a petition requesting permanent residency has been filed.

It is important to note that the information provided here is only a general guide, and individual circumstances may differ. For specific advice, it is recommended to consult an immigration lawyer.

Dual intent visas allow travel

Whether or not your spouse can travel abroad after the I-140 is filed depends on their current status.

Dual-intent visas (L and H visas) allow travel and re-entry to 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 while entering or re-entering the country. Therefore, if your spouse has a valid L or H visa, the I-140 petition will not impact their ability to re-enter the US.

The following visas are considered dual-intent visas:

• L-A
• L-1B
• H-1B
• H-4
• O-1
• K visas (for fiancés and spouses of US citizens and their minor children)
• V visas (for spouses and minor children of lawful permanent residents)

If your spouse is on a non-immigrant intent visa (J, F, or B visas), they are generally not advised to travel. This is because the US considers them to have a residence abroad that they intend to return to. Filing for an I-140 may impact their ability to re-enter the US and they may be rejected at the port of entry.

Therefore, if your spouse has a dual-intent visa, they can travel abroad after the I-140 is filed without impacting their ability to re-enter the US. However, if they are on a non-immigrant intent visa, travelling abroad after the I-140 is filed may put their permanent residency application in jeopardy.

Frequently asked questions