Advance Parole Discussion
Hi All, Anybody have experience with emergency Advance parole, My Mother in law is not doing well and hence my wife wanted to travel immediately, I submitted by I485 and parole 1st of this month and have not got the receipt yet (My attorney is very slow in responding so not sure if he got it yet...), I took infopass appt for next week and see if I can speak to someone in local office and help getting the parole. Pls let me know your advise and experience if someone had similar situation.
Sorry for bad situation. From what I know, there is no provision to expedite an AP issuance request.Originally Posted by sswaitinggc
If your wife already has valid H1 or H4, but no stamp, she will have to go to consulate for stamping in order to re-entry. If you are by any chance worried that this may trigger an investigation into the underlying H1 you hold or she holds, then I might suggest she just wait there till you get AP issued, which you can then send via courier to her. If she waits long enough for GC to be issued, I believe she would have to go to consulate to get an immigrant visa stamp. Since she was here when you applied for I-485, she is ok. I would wait for receipt confirmation for peace of mind. These are just my thoughts, others may correct, add as necessary please.
I think there is. A friend of mine was in a similar situation. He had a family emergency back home and did not get his AP. So, he called the customer service center and explained his situation. Not sure which level he spoke to, but they took his details and expedited his application. He got his AP in a week. You might want to try that.
Nishant - I think it is not legal to send AP approval documents to a person who is outside the country. Not 100% sure though.
also from net search it looks like there are complications associated with leaving when AP is pending and not approved. Anyone else chime in if you know, it looks much more complicated than feels. I am convinced now that its better to just get the emergency approval and then go.
If you leave before the AP is in hand (or at least approved) and are not in legal H or L status at the time you leave, you will abandon the I-485 application under the law. I can quote the relevant portions, if you like. It is your situation when you DEPART the USA that determines this, not when you try to re-enter, so sending the AP after approval doesn't overcome this. If they are in valid H or L status and leave before the AP is approved, then they must have a valid H or L visa to return.
In plainer language, USCIS addressed this when answering an AILA query http://www.uscis.gov/files/nativedoc...ILA_2Apr08.pdf It is covered in the response to question 26.
Do check with an immigration lawyer. The consequences of the wrong action can be severe. Never solely rely on internet advice, even mine.USCIS Response: Advance parole granted to those outside the U.S. is an extraordinary measure used sparingly to bring an otherwise inadmissible alien to the U.S. for a temporary period due to a compelling emergency or significant public benefit. It is not to be used to circumvent the normal visa issuance process.
Advance parole that is sought to preserve the pendency of an I-485 application must be applied for and granted before the alien’s departure from the U.S.
If the above non-immigrants filed adjustment applications prior to departing the U.S., they need not also have filed for advance parole where they have a valid NIV that may be presented at a port of entry. This of course assumes these same individuals have maintained their status (8 CFR 245.2(a)(4)(ii)(C) and(D)).
If, however, they have failed to maintain their non-immigrant status, advance parole must have been granted prior to their departure from the U.S. or their adjustment application shall be deemed abandoned.
If an H or L non-immigrant with a pending adjustment application appears at a port of entry and presents both an I-512 and his/her valid NIV, CBP should advise the alien that he or she must choose whether to use the H or L visa or the advance parole document.
Last edited by Spectator; 10-10-2011 at 06:14 PM.
Without an irritant, there can be no pearl.
Spec and Nishant
Thanks for clarifying on the depature prior to AP being granted issue.It made me aware that there might be problems with the scenario.
The wording of the document is making me uncomfortable .Specifically the "granted before alien's departure part from US". I will have to make an decision on a similar situation where my spouse who is on a H4 visa and has maintained her status will have to travel to India sometime in Feb2012 . My 7th year H1 extension has been approved recently and I had planned for her to attend the visa interview and get her extension stamped as well.Technically if dates move in the next bulletin and I get current the AP would not have been granted by the time she leaves.
Now leaving aside problems associated with the visa stamping.Would she have an problem at the POE with an chance the officer might raise an question of I-485 having being abandoned ( even though the applicant was present in the USA when the application was filed and if she had an copy of the receipt ) .
What does it mean when they say that a I-485 application is deemed abandoned? Can it be revived by applying for AOS again? Or does it mean you have just wasted a whole bunch of years only to go through the steps(labor,140 and 485) again? Do you keep your priority date from the previous application?
Edited: I guess since you are out of the country you cannot apply for AOS anyways.. would you be allowed to do a CP then? with your current priority date?
Last edited by pdfeb09; 10-10-2011 at 05:40 PM. Reason: Realized that AOS cannot be done since you are out of the country.
100% agree.. Do not leave without AP in hand. If you have valid H1/H-4 status, wait for the receipts atleast of I-485, EAD and AP
The "granted before alien's departure part from US" part is specifically referring to the AP in the context of the reply.
In the context of the H4, if she is maintaining H4 status at the time she departs, she does not abandon any I-485 she might have pending at that time, since this is allowed by law.
If the AP has not been granted at the time she departs, it means she has no other option but to return using a valid H4 visa and presenting it at POE IMO.If the above non-immigrants filed adjustment applications prior to departing the U.S., they need not also have filed for advance parole where they have a valid NIV that may be presented at a port of entry. This of course assumes these same individuals have maintained their status (8 CFR 245.2(a)(4)(ii)(C) and(D)).
Do check with an immigration lawyer.
kd does bring up a valid point of view, but the same is true of every other site I have ever visited. Some advice is outright dangerous and plain incorrect.
I do not offer legal advice and would always advise checking with an immigration lawyer, because some issues can be very fact specific.
In my defence, I have backed up my opinion by pointing to specific documents, issued by and hosted on the relevant Government Agency's website and I can also point to the specific INA laws governing this issue. That gives people the chance to make their own mind up.
I do not comment unless I am far more than reasonably confident in the reply - the consequences of guessing and using internet wisdom don't bear thinking about. If I have any doubts, I will spell them out. Often, even lawyers have differing interpretations.
For instance, I am not going to say it OK to travel before the AP is granted because other people have got away with it before. That doesn't make the action lawful, when the law is entirely contrary to that action.
Without an irritant, there can be no pearl.
Gcseeker, Q and Spec have covered it very well. If she has the receipts of I-485, AP etc to show that she was present in US when she filed and is on valid h4 status..no problem at POE regarding abaondning status etc. When she returns back, she will need to have a valid H-4 stamp on her Passport ( either old or new H-4 stamp). Please check with lawyer also.
Last edited by Monica12; 10-10-2011 at 06:33 PM.
Spec
Thanks a ton for responding . As always your answers are very detailed and it helps immensely.
Also will consult an lawyer before taking any steps . Thanks again to Q,Spec,Pedro and Kd2008 for clarifying and answering my question.
Monica behen
Thanks for confirming the information.
Last edited by gcseeker; 10-10-2011 at 06:27 PM.
Very well said Spec, some advise out there can be very dangerous and not correct at all. Always should check with a COMPETENT lawyer.
I also refrain from answering a question unless I'm quite sure about it. I think I'm going to put a dislcaimer under my posts, the way Veni has
Last edited by Monica12; 10-10-2011 at 06:40 PM. Reason: typos
Sandeep11
Please refer to the below article from Muthy.com ,though it is a little dated.Also one more link from the Law offices of Shusterman referring specifically to the Cronin memo
http://www.murthy.com/news/UDnewins.html
http://shusterman.com/h1blvisasmemow...nceparole.html
"If an H-1 or L-1 nonimmigrant has traveled abroad and reentered the United States via advance parole, the alien is accordingly in parole status. How does the interim rule affect that alien's employment authorization?
A Service memorandum dated August 5, 1997, stated that an "adjustment applicant's otherwise valid and unexpired nonimmigrant employment authorization ...is not terminated by his or her temporary departure from the United States, if prior to such departure the applicant obtained advance parole in accordance with 8 CFR 245.2(a)(4)(ii)." The Service intends to clarify this issue in the final rule. Until then, if the alien's H-1 or L-1 employment authorization would not have expired, had the alien not left and returned under advance parole, the Service will not consider a paroled adjustment applicant's failure to obtain a separate employment authorization document to mean that the paroled adjustment applicant engaged in unauthorized employment by working for the H-1 or L-1 employer between the date of his or her parole and the date to be specified in the final rule."
The status could be stamped as parolee on the I-94 at port of entry but theH1B does not get cancelled is what the cronin memo is saying
"1) Suppose a person does not have a valid H1B stamping in his passport (say, the old H1B stamp expired and his new stamping attempt at a consulate was a failure ). He has valid advance Parole. In port of entry can the person say that he has valid H1B I-797 and would like to work on H1B rather than EAD?
AT the POE they are looking for valid documents. Even if you enter using AP, this does not invalidate your H1B. I did same thrice and have no issues. Only once an officer asked whether I am still with the same company for which I replied yes.
Will the Port of Entry people cancel the I-797 and give an I94 based on Advance Parole? They do not cancel your I-797 as entering using AP does not invalidate it. They will issue a new I-94 and mark it as 'Pending AOS', if you enter using AP.
After doing that can the person get a new I-94 while extending the same I-797 in the future to get a new I-94? Very much yes. I did traveled thrice and extended my H1 after each time with the same employer
2) Suppose a person has a valid H1B visa stamped on his passport as well as a valid Advance Parole.
While entering the country through a port of entry if the person shows only the valid H1B visa, the Port of entry computer system will prompt the officer to ask the Advance Parole from the H1B person. The officer will say, "You can work in H1B, but u cannot hide AP". Show your AP. Is this true?
If you have valid visa and enter using valid H1, I do not think they request your to provide AP. They can view all transactions related to you and very well know that you have a valid AP, EAD based on pending I-485."
Last edited by gcseeker; 11-02-2011 at 01:31 PM.
Okay I think I got the answer finally on the differing opinions and experiences at various forums.Here is the answer copied from one of the forums
There are a substantial number of EB-485 filers who maintain a H-1B status and at the same time possess an Advance Parole. Some of these EB-485 filers may want to travel on Advance Parole rather than on H-1B because of the complication and delay in obtaining the H-1B visa stamp at the visa posts.
* People are confused as to whether they can return to the U.S. using Advance Parole and continue the H-1B employment without EAD. The answer to this question is confusing because the legacy INS flip-flopped itself in the past. Initially, it was policy that such H-1B alien who returns to the U.S. without EAD could not work as he/she was no longer H-1B nonimmigrant and did not have employment authorization. However, this memorandum was short-lived, being later amended and rescinded.
* The current rule is that the H-1B aliens who return to the U.S. using Advance Parole will be able to resume the employment authorization which is inherent in the H-1B status inasmuch as the following conditions are met: (1) The employment is resumed with the same H-1B employer. (2) The H-1B approval must remain valid, even though one does not need a valid H-1B visa stamp. Once the H-1B validity expires, so does the employment authorization. Such an alien cannot continue employment unless he/she obtains either EAD or extension of H-1B status. The H-1B alien returning to the U.S. as a parolee when they use Advance Parole and their status remains a parolee and not a H-1B nonimmigrant, but current rule and policy allow such H-1B approved aliens two benefits pending finalization of its policy on this issue and release of a regulation.
gcseeker,
I never meant to say that the H1 will become Invalid. If you look at both the scenarios I mentioned I say that when you use AP to reenter your status will be 'Parolee'. If you have underlying H1 which is still valid then you would get back to the H1 status only when you file for extension next time or exit and reenter on a H1 visa.
Thanks for your reply.
I dont know if this is important to look at or already discussed.
Major receipt volumes in September 2011 include: 77,928 I-90 green card renewals/replacements; 68,216
I-765 employment authorizations; 55,362 I-130 immediate/all other petitions; 43,393 I-485 applications to
adjust status; 34,235 I-129 forms filed; 19,299 I-131 travel document/advance parole.
Major volumes of pending applications at the end of September 2011 include: 514,094 I-130 immediate/all
other petitions; 351,785 I-485 applications to adjust status; 308,134 I-90 green card renewals/replacements;
143,493 I-765 employment authorizations; 110,095 I-751 remove conditions spouse jointly/waive;
69,988 I-129 forms filed; 58,7065 I-131 travel document/advance parole.
http://www.uscis.gov/USCIS/Resources...s-2011-sep.pdf
Guys..Since this is urgent..I request help.
I have a valid H4 stamp and date is current Jan 1st. I have to go back to India end of Feb by which I may not get my AP. Can I travel in and out without the Advance parole purely on H4? My husband is on H1 B also no intent to transfer to EAD.
I read online that travelling without AP means abandoning my I 485. Is this true
RMS_V13,
Yes you can, please refer to my responses to mygctracker few pages back.
Please make sure you will not miss bio-metrics appointment!
Not a Legal advice/opinion, please check with good immigration attorney.
Veni is definately true here... but my two cents. If you are current as of Jan 1st, 2012 and you are planning a trip to India then the primary applicant will have to wait for you to come back and then file I-765, I-131, I-485. Again this is not at all a good idea since the dates can bounce back to 2007 and you may not get a chance to file for another few months in good case. Reason being is that the applicant and all dependents have to be in the country when the case is being processed. If you chose to leave while the case is in process and you miss the bio exam then your case is considered abondoned even if the primary applicant is available. If your trip is planned for a couple weeks then you may want to wait till the feb VB comes out which usually happens around 10th or 12th of each month and see if the dates have progressed/ stagnant or have bounced back. If the dates remain same then you can buy another month and file end of Feb when you are back. Again there is a risk but make sure you check all your options before you decide antything. It's better to be safe than sorry. Hope this helps.
Hi RMS,
You have to make sure when your application reaches USCIS you need to be in USA along with other applicants. You do not need to be in US during the whole process but it has to be planned carefully depending on the case.
Two cases
1)Assuming you have a valid visa for your return and do not have to for stamping. Goa head and file 485 ASAP in January, If you get your biometrics are scheduled during your traveling days then approach the center for a early walk in with your tickets and explain the situation and worst case you can always request for a new date, i know people who have rescheduled there appointment this in the past, the only downside being that your new date may be 1 to 2 months apart. Someone did mentioned in previous pages that there is something like urgent Advance payrole and you can get that going through your lawyer or using INFOPASS - check on this one as i do not know the process.
2) If you do not have a valid visa, then make sure your application gets submitted in ASAP in first week of January, this will make sure you get your fingerprinting done before you leave. In the meanwhile gather information regarding Urgent AP and get on top of it by mid Feb to make sure you get it before you leave. This will make sure incase you get into issues regarding Visa stamping then you will be able to travel back on AP..
Hope it will help you. Let me know if you have any follow up questions on this
This is second hand but my brother in law told me that with a receipt you could go to a field office and get it done immediately. Not sure how accurate it is.
The AOS beneficiary is required to be physically present inside USA for filing I-485 , once the application is received by the USCIS ( with a proof of hard copy receipt) , if you are maintaining a dual intent non-immigrant status (H1B, H-4, L-1 or L-2) having valid stamp ( or planning for stamping ) , you can travel to and fro without AP.
Travelling on pending Advance Parole is not abandonment of AP. You can use the AP later for next trip .
Note:
This is not a legal advice. Please consult an Immigration attorney.
Last edited by Kanmani; 12-24-2011 at 05:15 PM.
You can find some info at CM's website on this topic : http://us-non-immigrants.blogspot.co...ed-parole.html
But, then again like the gurus mentioned, check with an immigration attorney.
I have been a silent everyday watcher of this thread and it's been great. Please remove this after I get a response as it is not relevant to calculations. I am in a situation where I am getting conflicting answers even from Attorneys.
I travel overseas twice a month and have a valid H1B stamped visa till the next 2 years. Now I am current and will be filing 485 on Feb 1st. According to my Attorney:
I) I can travel overseas after I receive receipt of filing and return on H1B while 485 is in process if I have not applied for AP and EAD.
II) If I file for AP and EAD with 485, I should not travel before the application is "approved" because if I re-enter on H1B, I will void my EAD/ AP.
Now does that sound true? Don't want to challenge the wisdom of an experienced attorney but I read on Murthy website that one can travel on H or L status with valid visa prior to AP approval unless I am reading it wrong. Can any of the Gurus categorically provide their input on this? Has anyone else experienced a similar travel dilemma? I cannot wait fir 3 months for EAD to be approved. It's against the nature of my job. A quick response is greatly appreciated.
VC Komara : I am not sure if your point # 2 is 100% correct. I don't know the specifics of your case so I cannot comment. But when I asked my lawyer if I can travel, he said as long as I have a valid H or L status I can. I should not be using my EAD which means I require an AP to re-enter.
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