Ep. 62 Can you leave the country while status of application is pending?

  • When you come to the US as a visitor, or a student, or on a work visa, sometimes you will need to change your status.
  • Can you leave the country while status of application is pending?
  • If you leave, it will actually result in the abandonment of the application.

Raw Transcript:

Jacob: Hello everybody, this is Jacob with Ask an Immigration Lawyer Podcast. You ask, we answer, simple.

Today I want to answer a couple of questions that came from people that are either about to file or are currently waiting for their change of status application inside of US.

Whether you come here as a visitor, or a student, or on a work visa, sometimes you need to change your status. So for example, let’s say you came on a work visa and then you lost your job, you want to move from work status to a tourist status or a student status. All these things require what is called a change of status application.

Typically it’s used on form I-539. When you file most of these applications, it takes place two to three months. That’s what it typically takes to file those kind of change of status applications.

But the biggest question that I get on these applications no matter what visa you’re here on or what visa you’re transitioning to, is whether you can actually leave the country while the application is pending.

That’s an interesting question because the application is pending. In many cases, people are not allowed to work if they are doing this from a tourist to a work visa until the work visa is actually approved or from a work visa to a tourist visa. Obviously you cannot work. What can you do during this few months? Some people are wondering whether they can leave and wait in their home countries.

Well, the problem is that when you leave an application that is pending – change of status – it actually will result in the abandonment of the application. In fact, ICE, which is the Immigration Customs Enforcement agency, have not really provided a guidance on how travel applies to individuals with “pending change of status.” But we clearly understand that if somebody is pending something, the moment they leave the country, their application will be deemed abandoned.

My recommendation is that when you are going through on change of status application, it’s better to wait for it to be approved or at least get some sort of result. If it’s not an approval, then you know at least that you have no reason to stay or maybe you want to file a motion to reconsider.

But the bottom line is that when your case is spending, you’re not allowed to travel. And the reason is because travel or departure from the US will deem the application abandoned. So don’t travel when you have an application – any application – for a change of status.

Hopefully it was clear. Thanks for listening to these series of short episodes of Ask an Immigration Lawyer. We love your support. The questions that come in, we will continue to try and answer them on a weekly basis.

You ask, we answer, simple. This is Jacob here in sunny San Diego and we’ll see you at our next episode.

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