H4 visa stamping and AOS

[gcpursuit]

Hello Gurus,

I have a question about travelling without AP ( assuming I get to file for AOS with the new acceptance date rumour ). Here is our situation.

My spouse's H1 expires October 31st. She is planning to resign from her job in October ( last day Oct 23rd) and booked her tickets to India to leave the country on October 25th, get H4 stamped and come back in December. IF we are eligible to file I-485 in October, can she still travel and come back on H4 or should we wait for AP approval to travel?

I know that if you are in the same H status, you don't need AP but in our case I am not sure if she is in valid status when she leaves since she would have quit her job although her i-94 would be valid.

Would it help if we apply H1 to H4 COS now and then leave in october. The COS wouldn't be approved when she leaves though.

Please give suggestions for handling this situation.

Thanks in advance.

[gcpursuit]

Any inputs?

[mechanical13]

Hello Gurus,

I have a question about travelling without AP ( assuming I get to file for AOS with the new acceptance date rumour ). Here is our situation.

My spouse's H1 expires October 31st. She is planning to resign from her job in October ( last day Oct 23rd) and booked her tickets to India to leave the country on October 25th, get H4 stamped and come back in December. IF we are eligible to file I-485 in October, can she still travel and come back on H4 or should we wait for AP approval to travel?

I know that if you are in the same H status, you don't need AP but in our case I am not sure if she is in valid status when she leaves since she would have quit her job although her i-94 would be valid.

Would it help if we apply H1 to H4 COS now and then leave in october. The COS wouldn't be approved when she leaves though.

Please give suggestions for handling this situation.

Thanks in advance.

If you don't apply for AoS before your wife leaves, its OK for her to leave on October 25th after quitting her job on October 23rd. There is typically a 15-day grace period for unauthorized presence anyway, so there shouldn't be any problems. In fact, I think unlawful presence waiver is upto 180 days, so there really shouldn't be any issue even at AoS stage if she left 2 days after quitting her job.

If you apply for AoS - you shouldn't be leaving the country until you receive you AP, since allowing a person to do so defeats the very purpose of an AP.Leaving the country before AP is approved represents 'abandonment' of your AoS application. Along those same lines, you can't apply for AoS for someone if they are outside the country (e.g. your wife is outside the country and you are here when the dates become current).

On a side note - I do hope for everyone's sake that DoS starts to establish the dual-cut-off date system in October. It would be an awesome (and surprise) outcome that would be welcome by everyone. I would honestly think that the chances of such system getting implemented are very small, but who knows - in the world of immigration, there is no fairness and no predictability!

Good luck, and hope this helps!

[gcpursuit]

If you don't apply for AoS before your wife leaves, its OK for her to leave on October 25th after quitting her job on October 23rd. There is typically a 15-day grace period for unauthorized presence anyway, so there shouldn't be any problems. In fact, I think unlawful presence waiver is upto 180 days, so there really shouldn't be any issue even at AoS stage if she left 2 days after quitting her job.

If you apply for AoS - you shouldn't be leaving the country until you receive you AP, since allowing a person to do so defeats the very purpose of an AP.Leaving the country before AP is approved represents 'abandonment' of your AoS application. Along those same lines, you can't apply for AoS for someone if they are outside the country (e.g. your wife is outside the country and you are here when the dates become current).

On a side note - I do hope for everyone's sake that DoS starts to establish the dual-cut-off date system in October. It would be an awesome (and surprise) outcome that would be welcome by everyone. I would honestly think that the chances of such system getting implemented are very small, but who knows - in the world of immigration, there is no fairness and no predictability!

Good luck, and hope this helps!

Thanks for the reply, mechanical. Appreciate it.

My doubt is related to the exception for H visa holders. I read that if you are in H status when you apply for I-485 and then leave before AP approval and come back in H visa, you 485 is not considered abandoned.

Can she apply for I-485 first and leave on the same day as her last working day so that she will still be in H1 status when she leaves and come back on H4. I am not sure if the exception is applicable if she leaves on H1 and comes back with a H4.

On a side note, any speculation on whether the "acceptance" dates will retrogress too?

[mechanical13]

Thanks for the reply, mechanical. Appreciate it.

My doubt is related to the exception for H visa holders. I read that if you are in H status when you apply for I-485 and then leave before AP approval and come back in H visa, you 485 is not considered abandoned.

Can she apply for I-485 first and leave on the same day as her last working day so that she will still be in H1 status when she leaves and come back on H4. I am not sure if the exception is applicable if she leaves on H1 and comes back with a H4.

On a side note, any speculation on whether the "acceptance" dates will retrogress too?

I am not familiar with this exception, so can't comment. I do know that if you have a valid H1, you can enter on AP and continue working on H1 (and not use EAD), but I don't know about the exception you mention. Did you read this in forum, or did an immigration attorney mention this exception to you?

No clue about whether Acceptance dates can retrogress. From the initial article on the topic (posted on Oh), seems like retrogression of accetance date is also likely. Time will tell!

[gcpursuit]

Thank you, mechanical. One of the trackitt users had posted this.

USCIS: (a) If a foreign national

(i) already possesses a valid, unexpired advance parole,
(ii) applies for a new advance parole while he/she is present in the U.S., and
(iii) then departs the U.S., the foreign national must return to the U.S. during the validity period of the current advance parole already in his or her possession.

If the foreign national returns timely, abandonment of the pending advance parole application would not occur.

However, the foreign national may not remain abroad after the initial advance parole expires and then seek to re-enter at a later time using the subsequent advance parole that was pending adjudication at the time the person departed the U.S.

(b) Yes, we confirm that that abandonment of a pending advance parole application does not occur if the foreign national is otherwise authorized to depart and return because the foreign national has an 1-485 pending and is readmitted as an H-1, H-4, L-1, L-2, K-3, K-4, V-1, V-2, or V-3.