Renewing EAD/AP Before Travel to India - Possible?

[gkjppp]

Guru's urgent question,

I got my EAD/AP on Apr'19,2012. we are planning to travel to india during 1st week of Jan for 3 weeks.before travelling to India i thought of applying for EAD and after return to apply for AP .My Company lawyer says, person should be within US since applying for EAD/AP to decision date. is that correct?

[Spectator]

Guru's urgent question,

I got my EAD/AP on Apr'19,2012. we are planning to travel to india during 1st week of Jan for 3 weeks.before travelling to India i thought of applying for EAD and after return to apply for AP .My Company lawyer says, person should be within US since applying for EAD/AP to decision date. is that correct?

No, I don't think that is correct, but you must make your own mind up.

If you already have a valid travel Document (AP or H1B), you may travel while the renewals are pending. If using AP, you need to return before it expires.

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.

For EAD, there is no requirement to be in the USA at the time of application.

You can only apply for renewal within 120 days of expiry.

It appears you could apply for both the EAD and AP before departure, since it is less than 120 days and you already have an AP valid for your intended trip.

[gkjppp]

No, I don't think that is correct, but you must make your own mind up.

If you already have a valid travel Document (AP or H1B), you may travel while the renewals are pending. If using AP, you need to return before it expires.



For EAD, there is no requirement to be in the USA at the time of application.

You can only apply for renewal within 120 days of expiry.

It appears you could apply for both the EAD and AP before departure, since it is less than 120 days and you already have an AP valid for your intended trip.

Spec,

(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.

This means, need to reenter using one of the visas,H-1, H-4, L-1, L-2, K-3, K-4, V-1, V-2, or V-3 and can't use AP to renter while AP renewal is in pending status?

[Spectator]

Spec,

(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.

This means, need to reenter using one of the visas,H-1, H-4, L-1, L-2, K-3, K-4, V-1, V-2, or V-3 and can't use AP to renter while AP renewal is in pending status?

Using AP to re-enter is covered by (a):

(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.

Returning using the existing AP is fine, as long as you return during its validity.

[gkjppp]

Using AP to re-enter is covered by (a):



Returning using the existing AP is fine, as long as you return during its validity.

Thanks Spec.

[immitrickz]

Hi Spec -

I am afraid in my scenario, (a)(ii) might not be feasible because of 120 day rule. Can he/she sign the papers while in U.S and spouse apply on his/her behalf when the renewal window opens?

Appreciate your response..

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.,

[Kanmani]

Hi Spec -

I am afraid in my scenario, (a)(ii) might not be feasible because of 120 day rule. Can he/she sign the papers while in U.S and spouse apply on his/her behalf when the renewal window opens?

Appreciate your response..

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.,

immitrickz,

What you describe does not fit into this section (ii) applies for a new advance parole while he/she is present in the U.S., When you apply on her behalf, she is not physically present in the USA.

Can she apply when she is out of the country? The answer would be NO as per the following document. http://www.uscis.gov/sites/default/f...ILA_2Apr08.pdf


Question No.26/Page No.9_Travel and Applications for Advance Parole

AILA requests clarification on issues relating to travel and applications for Advance Parole. Specifically, please confirm:
a.
That an H-1, H-4, L-1, L-2, K-3, K-4, V-1, V-2, or V-3 nonimmigrant that is in possession of a valid nonimmigrant visa for reentry into the U.S. need not be present in the United States when he or she files for an advance parole document.
b.
Please also confirm that an individual whose current advance parole document is still valid when he or she files for a new advance parole document is not required to be present in the United States when that new application is filed.

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.

[imdeng]

I believe the rule clearly states that the applicant must be in the US when the new AP application is filed. You can leave after filing - but then must return before the expiration of the existing (not the new one just applied for) AP document.

Hi Spec -

I am afraid in my scenario, (a)(ii) might not be feasible because of 120 day rule. Can he/she sign the papers while in U.S and spouse apply on his/her behalf when the renewal window opens?

Appreciate your response..

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.,

[immitrickz]

Thanks Kanmani and imdeng -

I got the gist of it but just to make sure - It does not matter even if the status is Parolee? The answer refers to H-1, H-4, L-1, L-2, K-3, K-4, V-1, V-2, or V-3 nonimmigrant that is in possession of a valid nonimmigrant visa for reentry into the U.S..

immitrickz,

What you describe does not fit into this section (ii) applies for a new advance parole while he/she is present in the U.S., When you apply on her behalf, she is not physically present in the USA.

Can she apply when she is out of the country? The answer would be NO as per the following document. http://www.uscis.gov/sites/default/f...ILA_2Apr08.pdf


Question No.26/Page No.9_Travel and Applications for Advance Parole

AILA requests clarification on issues relating to travel and applications for Advance Parole. Specifically, please confirm:
a.
That an H-1, H-4, L-1, L-2, K-3, K-4, V-1, V-2, or V-3 nonimmigrant that is in possession of a valid nonimmigrant visa for reentry into the U.S. need not be present in the United States when he or she files for an advance parole document.
b.
Please also confirm that an individual whose current advance parole document is still valid when he or she files for a new advance parole document is not required to be present in the United States when that new application is filed.

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.

[Kanmani]

Thanks Kanmani and imdeng -

I got the gist of it but just to make sure - It does not matter even if the status is Parolee? The answer refers to H-1, H-4, L-1, L-2, K-3, K-4, V-1, V-2, or V-3 nonimmigrant that is in possession of a valid nonimmigrant visa for reentry into the U.S..

immitrickz,

Subsection 'b' of AILA's question answers your doubt.

[Spectator]

immitrickz,

I agree with Kanmani.

To sum up, assuming the spouse is returning using a valid AP.

a) They must be physically present in the USA when the AP application is received by USCIS.

b) If they hold an AP that is still valid, they can then depart the USA.

c) They must return within the validity of the existing AP to collect the newly approved AP or to await its approval.

d) They cannot return using an H/L visa, since they were not maintaining H/L status at the time they departed the USA.

e) Once they have collected the AP, they can use it during the period it is valid.

f) The approved AP cannot be sent abroad for future re-use.

[immitrickz]

Appreciate it guys..Very helpful information.

Question i have now is this:

1) Let's say Current EAD+AP expires on Dec 1st 2014. 2) Spouse returns on Nov 1st 2014. 3) EAD+AP renewal is applied on Nov 1st 2014.
I am curious to know if there are any legal implications (Out of status etc.,), if the EAD+AP isn't renewed by Dec 1st 2014.
I understand that one can't work and travel after Dec 1st 2014 till EAD+AP is renewed.

immitrickz,

I agree with Kanmani.

To sum up, assuming the spouse is returning using a valid AP.

a) They must be physically present in the USA when the AP application is received by USCIS.

b) If they hold an AP that is still valid, they can then depart the USA.

c) They must return within the validity of the existing AP to collect the newly approved AP or to await its approval.

d) They cannot return using an H/L visa, since they were not maintaining H/L status at the time they departed the USA.

e) Once they have collected the AP, they can use it during the period it is valid.

f) The approved AP cannot be sent abroad for future re-use.

[Spectator]

Appreciate it guys..Very helpful information.

Question i have now is this:

1) Let's say Current EAD+AP expires on Dec 1st 2014. 2) Spouse returns on Nov 1st 2014. 3) EAD+AP renewal is applied on Nov 1st 2014.
I am curious to know if there are any legal implications (Out of status etc.,), if the EAD+AP isn't renewed by Dec 1st 2014.
I understand that one can't work and travel after Dec 1st 2014 till EAD+AP is renewed.

I can't think of any immigration related problems with that scenario.

The spouse would have received an (electronic) I-94 as a Parolee when they returned in November 2014, which is valid for 1 year. The pending I-485 would give a period of authorized stay even without that.

There would just be a short period where it would be inconvenient, if the need for emergency travel arose. If the person isn't working, the only problem some people seem to have without an EAD, is renewing a DL in some States. Even then, the I-94 would provide a temporary solution.

You are talking about 60 days at most to receive the new combi card, so it's unlikely to cause any problem.

Kanmani will correct me if I have given any incorrect information.

[Kanmani]

I can't think of any immigration related problems with that scenario.

The spouse would have received an (electronic) I-94 as a Parolee when they returned in November 2014, which is valid for 1 year. The pending I-485 would give a period of authorized stay even without that.

There would just be a short period where it would be inconvenient, if the need for emergency travel arose. If the person isn't working, the only problem some people seem to have without an EAD, is renewing a DL in some States. Even then, the I-94 would provide a temporary solution.

You are talking about 60 days at most to receive the new combi card, so it's unlikely to cause any problem.

Kanmani will correct me if I have given any incorrect information.

Spec, you have made everything crystal clear.

Parolees' get their I-94 in the old fashioned way, card attached to the passport.

[krishn]

Can I apply renewal for AP/EAD combo card before 120 days of expiration ?

after reading above posts I understand that we have to be in USA to apply for EAD/AP renewal. And we have to use the same AP/EAD combo card to go out/come in , from/ to USA.


my EAD/AP combo card is expiring on 4/3/15. am planning for a trip to India from Oct 3rd week to feb 2nd week.

Any suggestion on when do I renew my EAD/AP combo card ?


thanks a lot

[Spectator]

Can I apply renewal for AP/EAD combo card before 120 days of expiration ?

after reading above posts I understand that we have to be in USA to apply for EAD/AP renewal. And we have to use the same AP/EAD combo card to go out/come in , from/ to USA.


my EAD/AP combo card is expiring on 4/3/15. am planning for a trip to India from Oct 3rd week to feb 2nd week.

Any suggestion on when do I renew my EAD/AP combo card ?


thanks a lot

krishn,

If you apply more than 120 days before expiry, the application is likely to be rejected.

If the worry is about continuity of employment authorization and you need the EAD for that, then there is no stipulation that you need to be in the USA to apply for that. That only applies to the AP.

However, if you apply for the EAD seperately, you will not be eligible for a combo card - you would receive an EAD card and paper AP when you apply for that after returning from your trip.

If continuous employment authorization is not a concern, then you would have to wait until your return in February to initiate the renewal process for EAD and AP simultaneously. In that case, you would receive a new combo card. It's likely there would be a period when you did not have a valid EAD/AP.

[krishn]

Thank you spec, I was concerned about the EAD card. I will apply for EAD in Dec itself when am in India and I will come back in Feb and apply for AP.

helps a lot Spec.

[incredible]

Spec, you have made everything crystal clear.

Parolees' get their I-94 in the old fashioned way, card attached to the passport.

Hi
Just to correct this, Parolees' also get the I94 electronic way and not the old fashioned way. I Have traveled out of country thrice in the last year (latest last week) and came back on AP and it is electronic I94. None attached to passport.

[cool_guy_2004]

Hello Guru's,

I applied for my I-485 in Feb 2012 and I already renewed EAD which is going to expire next year. The last time I got it renewed there was no fee, looking at the USCIS website in I-765 form it says there is an application fee and some other place it says for few categories paper filing doesn't have fee and it didn't include employment based applications who have already applied for I-485 and waiting for GC. Can you please advice?

[Spectator]

Hello Guru's,

I applied for my I-485 in Feb 2012 and I already renewed EAD which is going to expire next year. The last time I got it renewed there was no fee, looking at the USCIS website in I-765 form it says there is an application fee and some other place it says for few categories paper filing doesn't have fee and it didn't include employment based applications who have already applied for I-485 and waiting for GC. Can you please advice?

cool_guy_2004,

The section you looked at is for categories that don't pay a fee for their initial EAD only. I guess they have not included (c)(9) because it does not apply to all adjustment applicants.

For I-485 filed under the new fee structure (August 2007 VB onwards), no fee is required for the initial EAD/AP or subsequent renewals.

On page 9 it states: http://www.uscis.gov/sites/default/f...i-765instr.pdf

NOTE: If you filed Form I-485, Application to Register Permanent Residence or Adjust Status, as of July 30, 2007, and you paid the Form I-485 filing fee, no fee is required to
also file a request for employment authorization on Form I-765. You may file the Form I-765 with your Form I-485, or you may submit the Form I-765 at a later date.

If you file Form I-765 separately, you must also submit a copy of your Form I-797C, Notice of Action, receipt as evidence of the filing of Form I-485 as of July 30, 2007.

On page 8, it also says:

Renewal EAD: If this is a renewal application and you are applying under one of the following categories, a filing fee is not required:

1. (a)(8) Citizen of Micronesia, Marshall Islands, or Palau;
2. (a)(10) Granted Withholding of Deportation;
3. (c)(l), (c)(4), or (c)(7) Dependent of certain foreign government, international organization, or NATO personnel;
4. (c)(9) or (c)(16) Adjustment applicant who applied after July 30, 2007.

To take advantage of the fee waiver, the application must be made by mail.

[cool_guy_2004]

cool_guy_2004,

The section you looked at is for categories that don't pay a fee for their initial EAD only. I guess they have not included (c)(9) because it does not apply to all adjustment applicants.

For I-485 filed under the new fee structure (August 2007 VB onwards), no fee is required for the initial EAD/AP or subsequent renewals.

On page 9 it states: http://www.uscis.gov/sites/default/f...i-765instr.pdf



On page 8, it also says:



To take advantage of the fee waiver, the application must be made by mail.

Thanks a lot Spec

[cool_guy_2004]

Thanks a lot Spec

Spec,

Another question regarding dependent's EAD & AP extension - my wife is a dependent on my GC and she working on EAD until earlier this year, we were expecting a baby so she quit her job (blessed with a baby girl two months ago). Her EAD & AP are going to expire in March 2015 and she is planning to travel out of country some time in 2015, do you think we can still apply for her EAD & AP extension even if she is not working? or should we only apply for AP extension and not EAD extension?

Thanks

[Kanmani]

Spec,

Another question regarding dependent's EAD & AP extension - my wife is a dependent on my GC and she working on EAD until earlier this year, we were expecting a baby so she quit her job (blessed with a baby girl two months ago). Her EAD & AP are going to expire in March 2015 and she is planning to travel out of country some time in 2015, do you think we can still apply for her EAD & AP extension even if she is not working? or should we only apply for AP extension and not EAD extension?


Thanks

A big YES. Of course you can apply for EAD/AP extension, doesn't matter whether you use it or not .

[cool_guy_2004]

A big YES. Of course you can apply for EAD/AP extension, doesn't matter whether you use it or not .

Thanks Kanmani!