Holiday travel warning

By Michael J. Gurfinkel Esq.

I know with the upcoming holiday season, so many Filipinos are anxious to take a balikbayan trip back home, to be with family, and celebrate Noche Buena and simbang gabi, under the lights of beautiful parols.

However, before you simply jump on an airplane and leave the U.S., please be aware that there could be serious consequences, which could affect your ability to return to the U.S., even if you are already a green card holder or your adjustment of status application is pending:

If you are a green card holder, you are certainly able to travel outside the U.S. However, if you have committed certain crimes, or obtained your green card through fraud which was later discovered at the Embassy or in connection with a naturalization or petition filing, those misdeeds may already be in the Department of Homeland Security's (DHS) database. Upon your return to the U.S., your crime or fraud could appear on the computers at the port of entry, thereby triggering proceedings for your deportation/removal. Many immigrants are "caught" only because they took a short vacation outside the U.S., and then tried to return.
If you have an adjustment of status application pending, but then depart the U.S. without "advance parole", it could be considered that you have abandoned your adjustment of status. This would affect your ability to return to the U.S.
If you have an adjustment of status pending, you would need to first apply for advance parole, which must be approved before you leave the U.S. According to the USCIS, "travel outside the United States without advance parole may result in serious consequences including being unable to return to the United States and having pending immigration-related applications denied". (Advance Parole is basically "permission" from USCIS to leave the U.S. and being able to return.)
However, even if you have an adjustment of Status application pending, and you obtained advanced parole, (but you had been out of status for more than 6 months before you filed for adjustment of status), DO NOT LEAVE THE U.S. EVEN UNDER ADVANCE PAROLE! The reason is that you could be subject to the 3/10 year bar. Under 3/10 year bar, if an alien has been "unlawfully present" (TNT) for more than 180 days, but less than one year, they are barred from returning to the U.S. for 3 years. If an alien has been unlawfully present for more than one year and departs the U.S., they can be banned from returning for at least 10 years. This includes aliens who departed the U.S. under a grant of advanced parole.

As you can see, traveling outside the U.S. is not always so simple and straightforward, where you hop on a plane, have a nice vacation, and then happily return to the U.S. If you had been out of status, and/or committed crimes or fraud, you are taking a very big risk in departing the U.S.

That is why it is important that you should seek the advice of a reputable attorney, who can analyze your situation and help you determine if it is "safe" to take a Holiday vacation back home.