Can the Foreign National Work and Travel While the Marriage-Based Green Card Case is Pending?

Q: Can the foreign national work and travel while the case is pending?

A: The foreign national will almost always be able to work legally within a few months of filing (this of course requires that an Employment Authorization Document be filed for along with the permanent residence application). In fact, if the foreign national was on a nonimmigrant visa which permits employment, he or she could work even before receiving these documents. Travel is a more difficult question.

For a marriage case where the spouse is a U.S. citizen, the Petition for Alien Relative and the Application to Adjust Status to Permanent Residence may be filed together. The filing of the Application to Adjust Status permits the filing of the Application for Employment Authorization Document to permit employment and the Application for Travel Document to permit travel. Both are approved roughly two to three months after filing.

For individuals who have been maintaining valid status before filing the Application to Adjust Status is filed, this is the end of the analysis - the foreign national spouse can both work and travel once these documents are received. If the foreign national is on a valid L-1 or H-1B nonimmigrant visa and has been maintaining status, he or she could even travel before receiving the travel document (known as an Advance Parole).

However, if the person had not been maintaining valid legal status, an examination of the foreign national's circumstances must first be made to determine if they will be subject to a bar to reentry based upon accrual of sufficient unlawful presence (see our FAQs on the three- and ten-year bars).

These bars would apply even though the foreign national is married to a U.S. citizen and even if a travel document has been approved.

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The above is presented for informational purposes only, and does not constitute legal advice or create an attorney-client relationship with our firm. The information provided should not be used as guidance in pursuing an immigration matter absent consultation with a qualified immigration attorney.