Sending Kids to Study in India while awaiting AOS and on EAD/AP

Dear Gurus,

My wife and I would like to send our child to a boarding school in India. We do not want our child's AOS application[She was born in India] to be rejected.

The possibility of having my employer apply a new H1-B visa for me and we switching over to the same does not exist. I did consult one of the famous immigration attorney's here and their advice was to have me move to H1-B visa and my dependents to H4.
Please let me know your thoughts on the Dos and Donts in having them study back home while we are waiting for GC.

a) Can we have her in the US every time we apply for her EAD/AP approval and get the receipt notice in hand ? I understand that she has to travel back to the states with the AP that she has in her hand and not the one that gets approved while she is away. She does have holidays every 6 months and will be able to travel to US.

b) Can we request USCIS citing our reasons ? Do you know/heard of anyone who has done this ?

c) Are there any other suggestions ???

Once I hear from you, I will consolidate the suggestions and bounce it off the attorney. Thanks in advance for your valuable suggestions.

~ Arjun

For folks who have the similar question :

I have received the following response from Murthy law firm Forum:

It may be best to call our office to speak to one of our attorneys directly, however the current trend is, upon departure while an AP application is pending- the application will be denied. This occurs even when the applicant has a valid AP document at the time of departure.
We will be publishing an article on this topic shortly.

Murthy bulletin for the month also included this warning and there were some threads in Trackitt with users who faced this problem. It's going to be a real pain for folks who rely only on EAD/AP, given the lack of premium processing or timeline around approvals. I wonder if they might start denying APs based on the assumption that they are not needed.

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Originally Posted by Pundit Arjun

For folks who have the similar question :

I have received the following response from Murthy law firm Forum:

It may be best to call our office to speak to one of our attorneys directly, however the current trend is, upon departure while an AP application is pending- the application will be denied. This occurs even when the applicant has a valid AP document at the time of departure.
We will be publishing an article on this topic shortly.

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Originally Posted by tenyearsgone

Murthy bulletin for the month also included this warning and there were some threads in Trackitt with users who faced this problem. It's going to be a real pain for folks who rely only on EAD/AP, given the lack of premium processing or timeline around approvals. I wonder if they might start denying APs based on the assumption that they are not needed.

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No idea what they are assuming and cancelling the AOS application as denied - I couldnt find any formal document indicating that they can do so :(. Anyways, spoke to the attorney as well and he confirmed the same.
It hurts that we are not able to execute our plans and wishes. Hope we all get greened soon and 5 years from that we will be able to execute our wishlist with freedom.

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Originally Posted by Pundit Arjun

No idea what they are assuming and cancelling the AOS application as denied - I couldnt find any formal document indicating that they can do so :(. Anyways, spoke to the attorney as well and he confirmed the same.
It hurts that we are not able to execute our plans and wishes. Hope we all get greened soon and 5 years from that we will be able to execute our wishlist with freedom.

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They are denying AOS?? I thought they are only denying the AP that is being renewed and not the AOS. Denying AOS is much more serious.

AFAIK they are not denying AOS. They are denying AP if you leave the country while AP is pending. That's my understanding.

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Originally Posted by tenyearsgone

They are denying AOS?? I thought they are only denying the AP that is being renewed and not the AOS. Denying AOS is much more serious.

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Originally Posted by imdeng

AFAIK they are not denying AOS. They are denying AP if you leave the country while AP is pending. That's my understanding.

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Thats my understanding as well .. that the renewal application for AP is being denied. AOS/485 application is not impacted.

This trackitt thread mentions the same issue from folks whose AP renewal was denied. http://www.trackitt.com/usa-discussi...-spouse/page/2

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Originally Posted by tenyearsgone

Thats my understanding as well .. that the renewal application for AP is being denied. AOS/485 application is not impacted.

This trackitt thread mentions the same issue from folks whose AP renewal was denied. http://www.trackitt.com/usa-discussi...-spouse/page/2

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imdeng and tenyearsgone, Interesting. I thought a denied AP and not being in the country will lead to an AOS rejection. The attorney did not say that AOS will be denied and mentioned only AP. I will check with him again and update the forum as well. If the AOS will not be denied and if there is a way to take care of AOS at ease, then I honestly do not care if the AP gets rejected. I myself have been away from home [in boarding] from elementary school till I completed masters. This is great for me - Will update the forum.

@PunditArjun: I hope you are proceeding with full caution. There are various scenarios in play here:

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I thought a denied AP and not being in the country will lead to an AOS rejection. If the AOS will not be denied and if there is a way to take care of AOS at ease, then I honestly do not care if the AP gets rejected.

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It may or may not lead to an AOS rejection further down the line. We have no way of knowing at this point. Especially if the current AP lapses and the applicant has no way of getting back in the country.

Other considerations:
- I assume the AOS was not applied with Consular processing. Typically GC holders could be denied entry back into the US by the CBP if they are out of the country for 6 months or more, on the assumption that they are no longer residing in the US. There are some workarounds for this such as showing strong ongoing ties to the US. In your case, I don't know if there are similar implications esp. without a GC.

- For folks whose GC gets approved while they are traveling abroad, usually they have a valid visa or AP to get back in the country. At port of entry, they can claim that their GC was approved and do some paperwork. But, this ofcourse means additional scrutiny at port of entry. Without a valid visa/AP, when GC gets approved would you daughter be able to gain entry into the US? Would she have a H4 visa through which she could enter?

Hopefully other folks on the forum can update based on the scenarios above. But, do speak with your attorney and discuss possible options. Keep us posted. Best of luck.

Small diversion:
I know a few folks with PD in 2011/2012 in same/similar situation who are mulling a full move back to India. In some ways, having a EAD/AP increases the dilemma further .. a case of so near, yet so far. For the later PDs, it is clearer that the GC is not happening any time soon.

[Disclaimer]: These are only my opinions. Please consult a attorney for accurate, legal advice.

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Originally Posted by tenyearsgone

@PunditArjun: I hope you are proceeding with full caution. There are various scenarios in play here:



It may or may not lead to an AOS rejection further down the line. We have no way of knowing at this point. Especially if the current AP lapses and the applicant has no way of getting back in the country.

Other considerations:
- I assume the AOS was not applied with Consular processing. Typically GC holders could be denied entry back into the US by the CBP if they are out of the country for 6 months or more, on the assumption that they are no longer residing in the US. There are some workarounds for this such as showing strong ongoing ties to the US. In your case, I don't know if there are similar implications esp. without a GC.

- For folks whose GC gets approved while they are traveling abroad, usually they have a valid visa or AP to get back in the country. At port of entry, they can claim that their GC was approved and do some paperwork. But, this ofcourse means additional scrutiny at port of entry. Without a valid visa/AP, when GC gets approved would you daughter be able to gain entry into the US? Would she have a H4 visa through which she could enter?

Hopefully other folks on the forum can update based on the scenarios above. But, do speak with your attorney and discuss possible options. Keep us posted. Best of luck.

Small diversion:
I know a few folks with PD in 2011/2012 in same/similar situation who are mulling a full move back to India. In some ways, having a EAD/AP increases the dilemma further .. a case of so near, yet so far. For the later PDs, it is clearer that the GC is not happening any time soon.

[Disclaimer]: These are only my opinions. Please consult a attorney for accurate, legal advice.

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Thanks for the considerate and detailed response, Tenyearsgone.

You are right that the AOS was not applied with Consular processing and based on the current trend if AP gets denied when she is outside, its pretty much no chance. The attorney advised us not to pursue for the same risk.

Hi Arjun

My knowledge may not be current anymore. But the last I remember there is always a risk in travelling during AOS period even if you have AP.

In this particular case - the fact that she will be going to a school in India if known to DOS could be a significant reason for DOS to consider AOS abandoned.

Now having said that you can take the risk and even if she loses her GC, you can always sponsor her GC once you get yours.

To reduce the risk it might be a good idea to bring her back to US during christmas vacation.

Hope this helps.

Regards
Q