Leave the US Results in A Denied Application: What You Don’t Know Can Hurt You

US Citizenship and Immigration Services (USCIS) sends out stakeholder messages from time to time.  I received the following message on 03/24/2016.  

Dear Stakeholder,

USCIS would like to remind individuals applying for a change of status to H-4 that if you travel abroad before we approve your Form I-539, Change of Status (COS) application, we will consider your application to be abandoned. This means we will deny your COS application. If you filed your Form I-765, Application for Employment Authorization, and travel abroad before your COS is approved, it will be considered abandoned, along with your I-539 application. This will result in a denial of your Form I-765 even if you are re-admitted as an H-4 nonimmigrant.  If re-admitted as an H-4 nonimmigrant, you would need to file a new Form I-765, with fee, in order to apply for employment authorization.

For more information, see the FAQs: Employment Authorization for Certain H4 Dependent Spouses webpage at www.uscis.gov.

Sincerely,

USCIS Public Engagement 

Below is an explanation of some of the above legal terms and details pertaining to the principles referenced in the USCIS message.

Change of Status(COS):  A petition to change a person’s nonimmigrant status from one category to another category is considered a petition for “change of status”.  For example, a person can change from B1 visitor status to F1 international student status, or from F1 international student status to H1B work status.   COS is different from “Adjustment of Status”  or “AOS” in immigration jargon. AOS refers to adjusting one’s status from a nonimmigrant status to an immigrant status, or getting a “green card”.  As such, if one is currently on H1B status and is applying for a green card through marriage to a US citizen, the person is “adjusting” status, not “changing” status.  

Abandonment:  There are many ways a person can abandon an immigration application. For example, if a person has filed an application, and USCIS responds by requesting more evidence, and if the applicants fails to respond, USCIS is going to deny the application based on “abandonment”.  In the message above, the COS application is intended to change a person’s status within the US.  As such, when USCIS notices that the applicant has left the US, USCIS assumes that the person no longer wants or needs to change status.  As a result, the application is considered “abandoned” and therefore denied.  The problem is that a lot of applicants do not realize that leaving the US while a COS application is pending will result in “abandonment” or “denial”.  Many thought that they would just take a short trip outside of the US and return to the US  to keep waiting for the application to be approved.  Unbeknownst to them, they have abandoned the COS application.  In the USCIS message above, the primary application was the “COS” application to H4 status, and the secondary application was the I-765 application for a work permit, the success of which depended of the primary application.  As such, when the primary application was denied, any secondary application was denied also as a matter of course.  

I think that’s enough immigration legal jargons for the moment.  The take-away is that if you are applying for a US immigration benefit or have submitted a US immigration application, you should check with your immigration lawyer before leaving the US, taking up a new job, starting school, or doing anything that is “different” from what your current status permits.  There are sometimes no consequence whatsoever, but there are times when the action could lead to severe adverse immigration consequences.