When to File the I-131 Application

Most aliens (non-U.S. citizens) must file Form I-131 with U.S. Citizenship and Immigration Services (USCIS) to obtain a proper travel document before traveling abroad. Doing so helps protect their ability to return. The three types of travel documents that you can obtain using this form are:

1. a Reentry Permit for permanent residents (valid for two years)
2. a Refugee Travel Document for refugees and aslyees (valid for one year), and
3. Advance Parole for most other aliens (valid for one year).

Although permanent residents are typically permitted to travel freely, and need only present a valid green card upon return, a reentry permit is necessary if the travel outside the U.S. is greater than one year. Once a person is granted permanent resident status he or she is expected to live here; the permit serves to establish that despite the long stay abroad, the person did not intend to give up residence in the United States. Even with the permit, travel outside the U.S. must not exceed two years.

Complications arising from travel outside the U.S. can also arise, even with a reentry or other travel permit, if:

• you are a permanent resident and you establish a residence  (make your home) outside the U.S., even if your travel does not exceed one year or your travel document remains valid, or
• you are a refugee or asylee and you travel to your home country, thereby availing yourself to the protection of the government of that country and implying that you did not need the United States' protection after all.

Note: If your total time outside the U.S. equals more than four out of five years, a reentry permit will be valid for only one year instead of two. You can find more information about maintaining your permanent resident status at "Avoiding Abandonment of Residence."  

I Have a Valid Nonimmigrant Visa and a Pending I-485. Do I Still Need to File Form I-131?

Yes, probably. It's a good question, since you're probably thinking, "I don't need a separate document to enter the U.S., I already have one here." But realize that part of the purpose of getting Advance Parole before departing is to assure USCIS that you are not abandoning your adjustment of status application (for a green card). There are exceptions to the travel document requirement for a few temporary visa holders:

• H-1 temporary workers, their spouses and children (H-4)
• K-3 spouses and K-4 children of U.S. citizens
• L-1 intra-company transferee workers and their spouses or children (L-2)
• V-2 spouse and V-3 children of lawful permanent residents

All aliens who are exempt from obtaining a travel document must present one of the above unexpired visas upon return to the United States.

Do I Have to Wait for Approval of My I=131 Application Before Leaving?

No. Departing the U.S. before your I-131 application is approved will not affect the decision and you may designate a U.S. consulate or embassy or USCIS office abroad where you would like to pick up the document. However, if you are required to undergo fingerprinting (biometrics), you must do so upon notification by the USCIS before you depart the U.S., or your application may be denied.

Does Obtaining a Travel Document Forgive My Previous Unlawful Presence?

No. Don't even think of leaving the U.S. if you have an unlawful presence problem and are in the process of obtaining a green card or other regularization of your immigration status. Unlawful presence in the U.S. for more than 180 days triggers a three-year bar to readmission (starting on the date of departure) even if you have a valid travel document. Unlawful presence for more than one year triggers a ten-year bar to readmission.

In either case, you would be required to obtain a waiver of inadmissibility, in which you request that the immigration authorities forgive or overlook the ground of inadmissibility, before you return. The application is made on Form I-601 and requires submitting extensive proof of how you qualify for the waiver and why you are deserving of the waiver. Even if you qualify, the granting of such waivers is always discretionary and decisions are made on a case-by-case basis.

Because of the consequences of unlawful presence and the many other dangers associated with departing and reentering the U.S., all of which cannot possibly be enumerated here, you should consult an immigration attorney to assist you in evaluating your status before filing your application and definitely before departing the United States.