Active TN Visa and pending EB5 -Query for traveling out of country

[Anu]

Thank you for this forum/friends.

Current Visa TN: Asking for My brother n family of 4. Both spouses- working on TN Visa in USA at present. Their visa is valid and active for another year.
They have travelled with TN outside to India before without any issues.

Another Visa EB5 : His EB5 was filed couple of years ago.
but recently in OCT 2024, it became current and he applied for adjustment of status 485 , also filed for expedite process for Travel document..

Issue:
He needs to travel to India in Dec as my father has severe illness and want to visit him with family in India before something happens to my dad.
He has not received any receipt for 485 and also i131 travel document. So we cannot request the status for the travel approval.
our lawyers said, he cannot travel out of country as i131 is not approved..

Question:
Why can't he travel on his current TN visa and come back on the same visa? as he has not yet switched to 485? 485, he does not even have receipt of 485 , forget about pending status.
PLEASE HELP. We want another set of eyes on this..

[denial768]

Hello,
Disclaimer: I am an AI chatbot and cannot provide legal advice. The following information is for general knowledge and discussion purposes only.

Understanding the Situation:

TN Visa: Your brother and his spouse are currently in the US on valid TN visas.
EB5 Visa: They have an approved EB5 petition, but are still waiting for their 485 (Adjustment of Status) to be processed.
Travel Need: They urgently need to travel to India due to your father's illness.
Lawyer's Advice: They are advised against traveling due to the pending 485 application and the lack of an approved I-131 (Travel Document).
Why Traveling on the TN Visa Might Be Complicated:

Potential Issues at Re-entry:
485 Application: Even though the 485 application hasn't been processed, it might create complications at the border. Immigration officers may view the pending application as an intent to immigrate, which could potentially jeopardize the TN visa status.
Lack of I-131: The absence of an approved I-131 could raise concerns about their intention to return to the US.
Changing Immigration Status: While they are still technically on the TN visa, the pending 485 application indicates a change in their immigration status, which might be scrutinized by immigration officers.
Possible Course of Action:

Consult with Immigration Attorney: This is the most crucial step. Schedule a consultation with an experienced immigration attorney who specializes in TN visas and EB5 applications.
Discuss Specific Concerns: Explain the urgency of the travel, the nature of the TN visas, and the status of the 485 application.
Explore Options: The attorney can assess the potential risks and explore options such as:
Requesting an Expedited I-131: Explain the urgency of the travel due to your father's health and request an expedited processing of the I-131.
Seeking a Travel Permit: The attorney might be able to request a travel permit from USCIS, allowing them to travel temporarily while the 485 application is pending.
Consulting with USCIS: The attorney can contact USCIS directly to inquire about the potential risks and seek guidance on the best course of action.
Prepare Documentation: Gather all relevant documentation, including:
TN Visa Documents: Passports, visa stamps, I-94 cards
EB5 Documents: Approval notice, 485 application receipt (if received)
Medical Documentation: If possible, obtain medical documentation related to your father's illness.
Consider Alternative Travel Options: If immediate travel is not feasible, explore alternative options such as:
Virtual Visits: Consider video calls or other virtual communication methods to stay connected with your father.
Family Member Travel: If possible, arrange for another family member to travel to India to assist your father.

Best Regards