Departing US While In H Status With A Pending AP

[saagar_is_cool]

Question to gurus, this is my situation. We applied for 485/EAD/AP and RD is Sep 4 2014 and we are first time filers this year. We have to attend a wedding in India in Dec. Plan is for my wife and kid to go in Nov 1st week and for me to go in Dec 1st week and return together in Dec end. We bought the tickets to this end already and rescheduling costs $600 + fare difference. Given that EAD/AP approval is taking 75+ days, I thought that my wife would go in Nov and I would take our EAD/AP cards with me when they come. Now, I found from my friend that 485 should be approved before one leaves the country or else 485 is considered abandoned. What are my options. The visa stamped (H1/H4) expired already and we have new 797 that is valid till 2016 for both of us. Now here are the questions.

1. Can my wife go to India before AP is approved, and I take her EAD/AP along with me and we return without H1/H4 stamping using AP for reentry at port of entry
2. If 1. above is not valid, then let's assume we go for stamping, and we get administrative processing or something on visa, can we both use AP as fallback and return using AP.
3. What are the other options besides rescheduling since we do not have any specific timeframe for EAD/AP approval currently?

Thank you for your time in advance

Mods, I am posting here to get attention. Please feel free move to appropriate forum after answered.

[vizcard]

Question to gurus, this is my situation. We applied for 485/EAD/AP and RD is Sep 4 2014 and we are first time filers this year. We have to attend a wedding in India in Dec. Plan is for my wife and kid to go in Nov 1st week and for me to go in Dec 1st week and return together in Dec end. We bought the tickets to this end already and rescheduling costs $600 + fare difference. Given that EAD/AP approval is taking 75+ days, I thought that my wife would go in Nov and I would take our EAD/AP cards with me when they come. Now, I found from my friend that 485 should be approved before one leaves the country or else 485 is considered abandoned. What are my options. The visa stamped (H1/H4) expired already and we have new 797 that is valid till 2016 for both of us. Now here are the questions.

1. Can my wife go to India before AP is approved, and I take her EAD/AP along with me and we return without H1/H4 stamping using AP for reentry at port of entry
2. If 1. above is not valid, then let's assume we go for stamping, and we get administrative processing or something on visa, can we both use AP as fallback and return using AP.
3. What are the other options besides rescheduling since we do not have any specific timeframe for EAD/AP approval currently?

Thank you for your time in advance

Mods, I am posting here to get attention. Please feel free move to appropriate forum after answered.

1. Yes you can do this.
2. You can do this as well.
3. I'd suggest that your wife and child go ahead and then if needed you can reschedule just your ticket to cut down the rescheduling fees.

Also, whoever told you that you cannot travel when your 485 is pending is misinformed. You can absolutely travel. That's the purpose of issuing an Advance Parole card.

[Kanmani]

Question to gurus, this is my situation. We applied for 485/EAD/AP and RD is Sep 4 2014 and we are first time filers this year. We have to attend a wedding in India in Dec. Plan is for my wife and kid to go in Nov 1st week and for me to go in Dec 1st week and return together in Dec end. We bought the tickets to this end already and rescheduling costs $600 + fare difference. Given that EAD/AP approval is taking 75+ days, I thought that my wife would go in Nov and I would take our EAD/AP cards with me when they come. Now, I found from my friend that 485 should be approved before one leaves the country or else 485 is considered abandoned. What are my options. The visa stamped (H1/H4) expired already and we have new 797 that is valid till 2016 for both of us. Now here are the questions.

1. Can my wife go to India before AP is approved, and I take her EAD/AP along with me and we return without H1/H4 stamping using AP for reentry at port of entry
2. If 1. above is not valid, then let's assume we go for stamping, and we get administrative processing or something on visa, can we both use AP as fallback and return using AP.
3. What are the other options besides rescheduling since we do not have any specific timeframe for EAD/AP approval currently?

Thank you for your time in advance

Mods, I am posting here to get attention. Please feel free move to appropriate forum after answered.

Sagar,

AP approval obtained after departure can only be used for a later travel, in other words, AP approval cannot be mailed to the beneficiary in abroad for the immediate usage. One can use AP for returning purposes IFF the AP document is approved before the day of travel.

So answers for your questions may be

1. NO
2. NO
3. H1B/H4 Stamping

[saagar_is_cool]

1. Yes you can do this.
2. You can do this as well.
3. I'd suggest that your wife and child go ahead and then if needed you can reschedule just your ticket to cut down the rescheduling fees.

Also, whoever told you that you cannot travel when your 485 is pending is misinformed. You can absolutely travel. That's the purpose of issuing an Advance Parole card.

Sagar,

AP approval obtained after departure can only be used for a later travel, in other words, AP approval cannot be mailed to the beneficiary in abroad for the immediate usage. One can use AP for returning purposes IFF the AP document is approved before the day of travel.

So answers for your questions may be

1. NO
2. NO
3. H1B/H4 Stamping

vizcard and Kanmani, I see mutually exclusive answers from you. Not sure which is right.

Kanmani, if you are responding based on the USCIS AILA answer (link), the wording on the answer in page 16 Addendum V is confusing. Specifically, there are two scenarios I see here.

1. We were on H1/H4 and got EAD and didn't apply for AP. We gave up H1/H4 and started using EAD. Now we are no longer in H status. At this time, we need to leave country and applied for AP. Since we were not in valid H status before departing, we need to have approved AP in hand before departing.
2. We are on H status and applied for EAD/AP together. We got neither yet, and are continuing on H status (expired visa but valid H status). Now when we leave the country, I am assuming we were on valid H status. Now we got the EAD/AP in mail when out of the country through whatever sources. When we left, we had valid H status and when we arrive we intend to use AP (without visa stamping) and lose the H status and enter under parolee status.

For 1. above, I agree that the wording matches the scenario and we need approved AP before leaving. However, for 2. above, do you think it is still a concern, that we need to wait for AP approval (email approval / CPO?) before departing the country?

Also, I have a couple of questions on approval terminology

1. What does AP approved before she leaves mean? If I get text message / email that AP is approved, will that serve as approval or do I need to get it in hand before I can consider it approved. I ask because, I see on these forums that CPO and actual card mailed can take significant amount of time (1-2 weeks)
2. What does valid visa status when we leave mean? Our visa stamped on passport expired a while ago, but we had renewals since then and valid I-797 approvals which gives us a lawful status. So, from the USCIS article quoted as below,

"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. "
we were technically in valid status and maintained our non-immigrant status when departing US in H1/H4 status (even though actual visa expired prior).

[Kanmani]

Sagar,

You understanding is little confusing to me.

This is straight forward. I leave USA and plan to return using

1. H1/H4 :- H1 should maintain non-immigrant status, possess valid visa stamped in the passport. No concerns about AP validity, can initiate thro lawyer for AP document and leave the country and return on H1/H4 visa. DONE

2. AP :- Having valid AP document, say valid through March 2015 , plan is to stay until jan 2015. I can initiate AP renewal through lawyer and leave the country and enter using existing one expiring on March 2015. I can't use the advance parole after March 2015, even though my lawyer has successfully renewed the AP. I must re-enter before march 2015 using the AP which I carried with me while exiting the country.

3.AP :- I don't have valid AP at present, H1 has switched jobs and now using EAD, my only option is AP to return the country. I must wait for AP approval (Document in hand) before departing the country to protect my pending I-485 application.
If I leave the country before AP approval , both the I-485 application and the AP application will be considered abandoned. I have no option to return to the country.

Hope this helps.

[Spectator]

sagar,

I totally agree with Kanmani.

If an AP is pending when the person leaves the USA, that AP, even if later approved while the person is outside the USA, can not be used to return from that trip.

If a person leaves the USA based on being in H/L status at the time they departed (and without a valid approved AP), then the only means they have to return to the USA is in H/L status.

To return in H/L status, they need valid H/L visas to present at the POE. Since you don't have one presently, that would mean a visit to the consulate to get a new visa.

For an H4 to return, the H1B holder must return in H1B status. The primary cannot return using AP while the dependent uses an H4 visa because using AP means the primary is paroled into the USA and is not admitted in H1B status.

"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."

we were technically in valid status and maintained our non-immigrant status when departing US in H1/H4 status (even though actual visa expired prior).

That is saying that the only way to depart the USA and not abandon the I-485, if the person is not maintaining valid H/L status, is by holding an AP that was approved before the person departed the USA. Since you are maintaining valid H1B/H4 status, you can depart the USA without abandoning your I-485 without the need for an approved AP.

If you make that choice, the only means to return is by being admitted back into the USA at the end of your trip in H1B/H4 status. You can't use the AP that was pending when you left, even if it was subsequently approved. That AP application is abandoned if you do not return in H or L status. If you return in H or L status, the AP will be valid for any further trips after your return.

The latest I-131 instructions say:

NOTE: Generally, if you are in the United States and have applied for adjustment of status to that of a lawful permanent resident, your application will be deemed abandoned if you leave the United States without first obtaining an Advance Parole Document. Your application for adjustment of status generally will not be deemed abandoned, even if you do not apply for an Advance Parole Document before traveling abroad while an adjustment application is pending, if you currently are in one of the following nonimmigrant classifications, and remain eligible for and would be admissible in one of the following categories upon applying for admission at a port-of-entry:

a. An H-1 temporary worker, or H-4 spouse or child of an H-1;
b. An L-1 intracompany transferee, or L-2 spouse or child of an L-1;
c. A K-3 spouse, or K-4 child of a U.S. citizen; or
d. A V-1 spouse, or V-2/V-3 child of a lawful permanent resident.

NOTE: Upon returning to the United States, most individuals must present a valid H, L, K, or V nonimmigrant visa and must continue to be otherwise admissible. If you do not have a valid or unexpired H, L, K, or V nonimmigrant visa, then you generally need to obtain an H, L, K, or V nonimmigrant visa at a U.S. Department of State (DOS) visa issuing post. Individuals will need a valid nonimmigrant visa, advance parole, or other travel document to present for reentry.

[PDAUG052010]

sagar,

I totally agree with Kanmani.

If an AP is pending when the person leaves the USA, that AP, even if later approved while the person is outside the USA, can not be used to return from that trip.

If a person leaves the USA based on being in H/L status at the time they departed (and without a valid approved AP), then the only means they have to return to the USA is in H/L status.

To return in H/L status, they need valid H/L visas to present at the POE. Since you don't have one presently, that would mean a visit to the consulate to get a new visa.

For an H4 to return, the H1B holder must return in H1B status. The primary cannot return using AP while the dependent uses an H4 visa because using AP means the primary is paroled into the USA and is not admitted in H1B status.



That is saying that the only way to depart the USA and not abandon the I-485, if the person is not maintaining valid H/L status, is by holding an AP that was approved before the person departed the USA. Since you are maintaining valid H1B/H4 status, you can depart the USA without abandoning your I-485 without the need for an approved AP.

If you make that choice, the only means to return is by being admitted back into the USA at the end of your trip in H1B/H4 status. You can't use the AP that was pending when you left, even if it was subsequently approved. That AP application is abandoned if you do not return in H or L status. If you return in H or L status, the AP will be valid for any further trips after your return.

One of my friend went to India in 2011 or 2012 after her 485 was applied but before EAD was received and got struck in India with H1B 221G for a month. Luckily the consulate didn't retain her passport. Meanwhile she received her EAD and AP here and her husband mailed the documents to India and she came back to US on AP with no issues. This case might be an exception. But I am sure this happened. Just want to bring it to your attention guys.

[Spectator]

PDAUG052010,

I've heard those stories as well.

The fact that they were allowed entry due to CBP ignorance of the law (or failure to check whether the AP was valid for use) doesn't actually make it OK though, does it? The I-485 could still be deemed abandoned by USCIS.

If the AP is approved after the person has departed the USA, then it is being granted to a person already outside the USA. USCIS have previously said:

USCIS: 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.

The use of the AP, that was unapproved at the time of departure, in this situation is for the express purpose of avoiding obtaining a new visa from the consulate.

There may be a case to change the law for AOS applicants, but that hasn't happened to date.

[Spectator]

http://www.murthy.com/2010/11/19/mur...dvance-parole/