Can I Travel Out of the USA if My I-539 and I-765 Application is Still Pending?

Introduction

If you have a pending I-539 Application to Extend/Change Nonimmigrant Status and I-765 Application for Employment Authorization, traveling outside the USA could jeopardize your applications. Typically, if you leave the U.S. while these applications are pending, they may be considered abandoned, leading to complications in the processing of your status and employment authorization. This article will guide you through the important considerations and provide detailed insights.

Key Points to Consider When Traveling with Pending Applications

I-539 Pending

If your I-539 is pending, traveling outside the U.S. generally results in the abandonment of your application. You might need to reapply for the extension or change of status upon your return. This rule ensures that you do not leave the U.S. with the intention of returning with an unauthorized or different status than your initial application.

I-765 Pending

A pending I-765 does not usually affect your ability to leave the U.S. However, if your I-539 is abandoned, it may impact your ability to re-enter the U.S. or your eligibility for the EAD (Employment Authorization Document).

Reentry Concerns

Even if you are on a nonimmigrant visa, leaving the U.S. could affect your ability to re-enter. You must have a valid visa to re-enter, and the USCIS' interpretation of the implications of leaving the U.S. can add complexity to the reentry process.

Consult an Immigration Attorney

It is advisable to consult with an immigration attorney to assess your specific situation and receive tailored advice. An attorney will help you understand the potential risks and benefits of traveling while your applications are pending.

Understanding the Rules: Detailed Insights

Change of Status Abandonment

If you change statuses from one nonimmigrant visa to another (e.g., from B-2 to H-4), the general rule is that the change of status will be abandoned if you leave the U.S. For instance, if you are in B-2 status and you have a pending change to H-4, leaving the U.S. will result in your I-539 application being denied due to abandonment. This is not an official policy, but an interpretation by USCIS.

Proper Extension of Stay

An extension of stay (where you do not change categories) will continue to be processed even if you leave the U.S. This is because it avoids the issue of changes in status. For example, if you file an I-539 to extend your L-2 status, and you leave the U.S. and return while your L-2 visa is still valid, you will be readmitted until the current expiration date of your spouse or parent’s L-1 status. If your spouse or parent’s L-1 extension gets approved, your L-2 status will be extended to the new end date of your spouse or parent’s L-1 status.

Concurrent I-539 and I-765 Applications

If an I-539 is denied due to abandonment, an I-765 filed concurrently will also be denied. For instance, if you leave the U.S., your H-4 status is denied, and you don’t have H-4 status, USCIS cannot approve your H-4 EAD, leading to the denial of your I-765.

Conclusion

In summary, it is generally not recommended to travel outside the U.S. while your I-539 and I-765 applications are pending, as this could lead to complications. Always consult an immigration attorney to ensure you make the best decision for your individual situation.

Key Takeaways

If I-539 is pending, travel outside the U.S. could lead to abandonment. A pending I-765 does not usually affect your ability to leave the U.S., but impacts if I-539 is abandoned. Leave the U.S. with a valid visa to avoid complications in re-entry. Consult an immigration attorney for tailored advice.