Are you an H-1B visa holder with an approved I-140 petition and wondering if you can travel freely? Navigating U.S. immigration policies can be complex, but SIXT.VN is here to provide clarity. This comprehensive guide answers your questions about traveling with an approved I-140, ensuring you understand your rights and options for immigration travel. Let’s delve into the details to help you make informed decisions for your immigration journey.
1. What Is an Approved I-140 and Why Does It Matter?
An approved I-140, or Immigrant Petition for Alien Worker, signifies that USCIS (U.S. Citizenship and Immigration Services) has approved your employer’s petition to sponsor you for permanent residency based on employment. But does having this approval mean you can travel freely?
Having an approved I-140 has several key implications:
- It allows you to extend your H-1B status beyond the typical six-year limit under certain conditions.
- It may allow your H-4 dependent spouse to apply for an Employment Authorization Document (EAD), granting them the ability to work in the U.S.
- It establishes your priority date, which is crucial for determining when an immigrant visa becomes available to you.
2. Can I Travel Outside the U.S. With an Approved I-140?
Yes, you can generally travel outside the U.S. with an approved I-140. However, it’s essential to understand the implications of such travel, especially if you have a pending adjustment of status application (Form I-485). According to the USCIS Policy Manual, individuals in H-1B status who are not in exclusion, deportation, or removal proceedings can travel while Form I-485 is pending without needing an advance parole document under specific conditions.
These conditions include:
- Remaining eligible for H-1B status upon return.
- Returning to the U.S. to resume employment with the same employer for whom the H-1B is authorized.
- Possessing a valid H-1B visa.
Alternatively, if you have been granted an Advance Parole Document based on an approved Form I-131, you can travel without abandoning your Form I-485 application, provided you travel within the validity period of the advance parole.
3. What Happens If I Travel While My H-1B Extension or Change of Status Is Pending?
If you depart the United States while an H-1B extension or change of status petition is pending, USCIS will consider the change of status request abandoned. If the petition is approved, the approval notice will be issued as a consular notification and will not confer H-1B status.
In this scenario, you would typically need to apply for and obtain an H-1B visa stamp from a U.S. Embassy or Consulate abroad and present yourself to U.S. Customs and Border Protection (CBP) to obtain H-1B status.
4. How Does an Approved I-140 Affect My H-1B Status Extension?
An approved I-140 plays a significant role in extending your H-1B status beyond the typical six-year limit. Here’s how:
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Extensions Beyond Six Years: If you are the beneficiary of an approved I-140 in the first, second, or third preference category and are eligible for lawful permanent resident status, except for the fact that an immigrant visa is not available, you can extend your H-1B status in up to three-year increments. Your employer must demonstrate that a visa is not available as of the date the H-1B extension petition is filed, as determined by your Form I-140 priority date and the relevant Visa Bulletin chart.
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One-Year Extensions: Even if your priority date is not current, you may still be eligible for one-year H-1B extensions if at least 365 days have passed since a permanent labor certification or an immigrant visa petition was filed on your behalf.
According to the USCIS Policy Manual, regulations authorizing H-1B status beyond six years apply to individuals who currently hold or previously held H-1B status.
5. Does Time Spent Outside the U.S. Count Against My H-1B Limit?
No, only time spent in the U.S. as an H-1B beneficiary counts toward the six-year maximum. Time spent outside the U.S. exceeding 24 hours can be “recaptured,” extending your eligible H-1B period. Your employer must request and establish eligibility for this recapture time.
Acceptable documentation includes:
- Passport stamps
- Form I-94 Arrival/Departure Records
- Travel history from CBP
- Airline tickets and boarding passes
6. What Is H-1B Portability and How Does It Relate to My Approved I-140?
H-1B portability allows eligible H-1B nonimmigrants to begin working for a new employer as soon as the employer properly files a new H-1B petition (Form I-129), requesting to amend or extend H-1B status with USCIS, without waiting for the petition to be approved.
This is particularly relevant if you have an approved I-140, as it ensures you can continue working and maintaining your immigration status while transitioning between employers.
7. Can I Change Jobs With an Approved I-140?
Yes, you can change jobs with an approved I-140. Two types of job portability are available:
7.1. H-1B Petition Portability
Eligible H-1B nonimmigrants can start working for a new employer as soon as the new employer files an H-1B petition on their behalf.
7.2. Immigrant Worker Petition Portability
If your adjustment of status application (Form I-485) has been pending for at least 180 days and you have an underlying valid immigrant visa petition (Form I-140), you can transfer the underlying immigrant visa petition to a qualifying new offer of employment in the same or similar occupational classification with the same or a new employer. According to the USCIS Policy Manual, this is sometimes known as INA 204(j) portability.
8. What Happens If My H-1B Employment Is Terminated?
If your H-1B employment is terminated, you have several options to remain in a period of authorized stay in the U.S.:
- File an application for a change of nonimmigrant status.
- File an application for adjustment of status.
- File an application for a compelling circumstances Employment Authorization Document.
- Be the beneficiary of a non-frivolous petition to change employer.
You typically have a grace period (up to 60 days) to take one of these actions. Failure to do so may require you and your dependents to depart the U.S. within 60 days or when your authorized validity period ends, whichever is shorter.
9. What If My Employer Withdraws the Approved I-140?
The consequences of an employer withdrawing an approved I-140 depend on how long it has been since the approval:
- Within 180 days of approval: USCIS is obligated to automatically revoke the I-140 approval. You would not lose your priority date, but you would need a new basis to extend your H-1B status beyond the six-year limit and adjust status.
- After 180 days of approval: USCIS would not revoke the I-140 approval solely because the employer withdrew it. You would continue to have an approved I-140 and remain eligible for H-1B extensions. However, you would need a new basis on which to seek adjustment of status.
10. Can I “Port” to Self-Employment With an Approved I-140?
Yes, if you have an approved Form I-140 petition or a pending Form I-140 petition that is ultimately approved, and your adjustment of status application (Form I-485) has been pending for at least 180 days, you may be able to port the offer of employment to self-employment in the same or similar occupational classification.
10.1. Key Considerations for Self-Employment Porting:
- Same or Similar Occupational Classification: USCIS will evaluate various factors to determine if the self-employment is in the same or a similar occupational classification as the job listed on the petition.
- Legitimacy of the Business: You must provide sufficient evidence to confirm that your business and the new job offer are legitimate.
- Intended Employment: USCIS considers whether the petition accurately represented the intended employment at the time both the petition and the adjustment application were filed.
According to the USCIS Policy Manual, your request to port should contain sufficient evidence to confirm that your business and the new job offer are legitimate.
11. Does My Priority Date Remain Valid If I Change Employers?
Yes, generally, your priority date is locked in once the Form I-140 filed on your behalf is approved. You can use this priority date in subsequently filed Form I-140 petitions. The only way you can lose your priority date is if the I-140 approval is revoked due to agency error, fraud, or willful misrepresentation of a material fact.
12. What Protections Do I Have Against Employer Retaliation?
You have a right to be protected from retaliation regardless of your immigration status. Immigration law provides certain protections to you as an H-1B worker if you report suspected fraud or abuse. If you face retaliatory action from your employer because you reported a Labor Condition Application violation, USCIS may use its discretion to excuse requirements for extending or changing your status on a case-by-case basis.
13. How Does International Travel Affect My Adjustment of Status Application?
For most adjustment of status applicants, departing the U.S. with a pending Form I-485 without first obtaining an advance parole document will result in denial of the Form I-485 for abandonment. However, exceptions exist for those in valid H-1B status who meet specific criteria, as outlined earlier.
14. What if I Have an Employment Authorization Document (EAD) Based on Compelling Circumstances?
An EAD based on compelling circumstances does not serve as a travel document or provide eligibility for readmission into the United States. However, it does not prevent you from applying for a nonimmigrant or immigrant visa at a consular post outside the United States to return to the U.S., assuming you are otherwise eligible.
15. Can My H-4 Dependent Family Members Work?
H-4 dependents are not automatically authorized to work. They must apply for and receive employment authorization from USCIS. H-4 spouses may file Form I-765 if the H-1B worker is the beneficiary of an approved Form I-140 or has been granted H-1B status beyond six years based on specific criteria.
16. Are My H-4 Dependent Family Members Also Subject to the 6-Year Maximum Period of Stay?
Dependent family members’ time in H-4 status is generally limited to the duration of the H-1B worker’s status. If an individual obtains H-1B extensions beyond six years, their H-4 dependent family members are also eligible for extension of H-4 status for the same duration.
17. What Happens to My H-4 Child When They Turn 21?
Once your child turns 21, they no longer meet the definition of a child under the Immigration and Nationality Act (INA) and will no longer be eligible for H-4 status. They would need to change to another nonimmigrant status or may still be eligible to adjust status or apply for an immigrant visa under the Child Status Protection Act (CSPA).
18. What Actions Has USCIS Taken to Support H-1B Workers and Families?
USCIS has taken several actions to help those waiting for an immigrant visa number, including allowing certain spouses of H-1B nonimmigrants to apply for employment authorization and improving job flexibility for H-1B workers and their families.
19. What Should I Do if I Believe My Employer Has Retaliated Against Me?
If you believe your employer has retaliated against you for reporting suspected fraud or abuse, you should:
- Document all instances of retaliation.
- Consult with an immigration attorney to understand your rights and options.
- Report the retaliation to the appropriate authorities, such as the Department of Labor or USCIS.
20. Can SIXT.VN Help Me Navigate My Immigration Travel Needs?
Yes, SIXT.VN can assist you with various aspects of your immigration travel needs. We offer:
- Visa Consultation: Expert advice on visa requirements and travel documentation.
- Airport Transfers: Seamless and reliable airport transfer services to ensure smooth arrivals and departures. Address: 260 Cau Giay, Hanoi, Vietnam.
- Hotel Booking: Assistance in finding suitable accommodations in Vietnam, catering to your specific needs.
- Travel Itinerary Planning: Customized travel plans to help you explore the best of Vietnam while adhering to immigration regulations.
- Travel Information: Up-to-date information on travel advisories, health guidelines, and local customs.
FAQ: Traveling With an Approved I-140
FAQ 1: Can I re-enter the U.S. if I travel while my I-485 is pending and I have an approved I-140?
Yes, if you maintain valid H-1B status, have an approved I-140, and are returning to the same employer, you can re-enter without an advance parole document.
FAQ 2: What documents do I need to travel with an approved I-140?
You typically need your passport, valid H-1B visa, and documents proving your employment. If you have an advance parole document, carry that as well.
FAQ 3: How long can I stay outside the U.S. with an approved I-140?
There is no specific limit, but prolonged absences can raise questions about your intent to maintain U.S. residency.
FAQ 4: Will my H-1B extension be automatically approved if I have an approved I-140?
Not automatically. You must still meet all H-1B extension requirements, but an approved I-140 is a significant factor in your favor.
FAQ 5: What happens if I lose my job while waiting for my priority date to become current?
You may still be able to maintain your priority date, but you need to find a new employer willing to sponsor you.
FAQ 6: Can my H-4 spouse travel while my I-485 is pending?
Yes, but they typically need an advance parole document unless they also maintain their own independent nonimmigrant status.
FAQ 7: Is it safe to travel during the final stages of my green card application?
It’s generally safer to avoid international travel during the final stages, unless you have an advance parole document.
FAQ 8: Does an approved I-140 guarantee that my green card will be approved?
No, it’s a significant step, but you must still meet all requirements for adjustment of status.
FAQ 9: Can I apply for a visa to another country while in H-1B status with an approved I-140?
Yes, your H-1B status allows you to apply for visas to other countries, but approval depends on their requirements.
FAQ 10: How does self-employment affect my green card application with an approved I-140?
You can port your application to self-employment if you meet certain conditions, but it requires careful documentation and legal guidance.
Conclusion: Navigating Your Immigration Journey With Confidence
Traveling with an approved I-140 involves understanding specific rules and potential implications for your immigration status. By staying informed and seeking expert advice, you can navigate this process with confidence. Remember, SIXT.VN is here to support you with all your travel needs, offering convenient and reliable services to make your journey as smooth as possible. For personalized assistance, contact our Hotline/WhatsApp: +84 986 244 358 or visit our website at SIXT.VN. Safe travels!
