Travel Prior to AP Approval

[delguy]

I am current (PD is EB-2 June 2010) to file I-485 as per the latest bulletin.
Question: Can my wife who has plans to visit India in next couple of months leave USA while I-485 (read EAD / AP) is pending? She will also be going there for her H1 visa stamping. I will be staying back in USA as my H1B extension is under process.

[Jonty Rhodes]

I am current (PD is EB-2 June 2010) to file I-485 as per the latest bulletin.
Question: Can my wife who has plans to visit India in next couple of months leave USA while I-485 (read EAD / AP) is pending? She will also be going there for her H1 visa stamping. I will be staying back in USA as my H1B extension is under process.

Your wife can travel to India under 2 scenarios when her I-485 is pending. 1) She should have an approved Advance Parole (AP) with her when she leaves the country. When she comes back, she can use the AP to enter US at the port of entry. 2) If she does not have an advance parole, then she should have a valid H1B visa stamp in her passport while coming back. If she has the stamp, she can enter US based on her H1 status and does not have to have an AP.

The only problem that I see in this scenario is that, lets say she leaves without an approved AP to India and she goes for H1 stamping. If for some reason, her H1 stamping is delayed or denied, she won't be able to come back to US till she gets her H1 stamp in passport or till she gets her AP approved here and you send her the AP card so she can travel back to US. Also, it would be advisable to keep the H1 status and EAD/AP both active and use H1 status for work and for entering the country as well. If you use EAD or AP to work or enter US, your H1 status automatically terminates.

Getting H1 stamping done while having a pending I-485 should not be a problem for her since H1B is a dual intent visa and her immigrant petition (I-485) should not be impacted when she applies for H1B stamping with non-immigrant intent.

Look at this link. It has some good details regarding travel with pending I-485.

http://www.hooyou.com/h-1b/h1b_Work%...o%20I-485.html

This is a general advise for travel and I don't know if it would apply specifically to your situation. So I would still recommend you wait for the experts on this forum to answer you or talk to your attorney.

[gcpursuit]

till she gets her AP approved here and you send her the AP card so she can travel back to US.

I don't think this is possible. If you leave before AP approval, you cannot use that AP is what I have read.

Correct me if I am wrong.

[Spectator]

Under the law, abandonment occurs when the person departs the USA, unless they are authorized otherwise. It comes under the heading Effect of Departure. I've quoted the statute numerous times in previous posts.

To avoid abandonment, the person must either have a valid AP at the time they depart, or they must be in valid H or L status at the time they depart the USA.

An AP pending at the time of departure cannot be used to reenter the USA from the trip. If the person returns using either another AP that was valid at the time of departure and reentry, or returns in H or L status, then the pending AP is not abandoned and can be used for subsequent trips once authorized.

[gcpursuit]

Under the law, abandonment occurs when the person departs the USA, unless they are authorized otherwise. It comes under the heading Effect of Departure. I've quoted the statute numerous times in previous posts.

To avoid abandonment, the person must either have a valid AP at the time they depart, or they must be in valid H or L status at the time they depart the USA.

An AP pending at the time of departure cannot be used to reenter the USA from the trip. If the person returns using either another AP that was valid at the time of departure and reentry, or returns in H or L status, then the pending AP is not abandoned and can be used for subsequent trips once authorized.

Thank you Spec.

We are applying for H1 to H4 for my wife now and will be applying for AOS in october. In this case, am I correct that she can travel AFTER her H1 to H4 COS is approved even if the AP is not approved by that time. I am asking this because she will be in H1 status when we apply I-1485. Does that matter?

[Spectator]

Thank you Spec.

We are applying for H1 to H4 for my wife now and will be applying for AOS in october. In this case, am I correct that she can travel AFTER her H1 to H4 COS is approved even if the AP is not approved by that time. I am asking this because she will be in H1 status when we apply I-1485. Does that matter?

gcpusuit,

That's my understanding. Her status at the time she applies for I-485 wouldn't be relevant.

[gcpursuit]

gcpusuit,

That's my understanding. Her status at the time she applies for I-485 wouldn't be relevant.

Thank you, Spec. That's good to know. We will try to wait for AP approval but with the volume of applications USCIS will be dealing with I am not sure if we will get AP in 3 months.

[imdeng]

USCIS can be pretty quick when they want to be. In 2012, when they opened EB2I floodgates, most people got their EAD/AP in less than 90 days IIRC.

Thank you, Spec. That's good to know. We will try to wait for AP approval but with the volume of applications USCIS will be dealing with I am not sure if we will get AP in 3 months.

[gcpursuit]

USCIS can be pretty quick when they want to be. In 2012, when they opened EB2I floodgates, most people got their EAD/AP in less than 90 days IIRC.

I have a track history of being unlucky esp in immigration related matters

I hope they stick to the 90 days processing time this time as well. Thank you, imdeng!

[moddalosatti]

Hi Everyone, can someone shed some light on my situation based on their knowledge and experience. My PD is May 2009

With yesterday's amazing visa bulletin, i have become current but the the situation is
1) My wife left to india just last week with our 1 month old infant and will not be coming back till December. So i am not sure if i could include her as a dependent while filing my i-485. I sent an email to an attorney, and he emailed me back with a reply saying that "i-824 filing is required but it would better for her to come back on h4 which means she has to go for stamping before she could return." I am not sure what i-824 filing is but Is this the best approach as the attorney mentioned and what happens once she comes back in december and the dates are no longer current for my PD. Would i still be able include her as a dependent and get EAD and AP for her? I do not want my wife to be MAD at me later if she does not get a chance to get these benefits...

2) I am travelling myself to india in december first week and i plan to file EAD and AP along with my i-485 next month, hoping that my AP would be approved before i leave. Would you guys recommend this? Someone suggest that i apply for EAD and do biometrics but only apply for AP once i return which would mean i would need to go for stamping before i could return.

You guys have so much knowledge, Can you please suggest or recommend the best approach. Thanks in advance

[delguy]

If the person returns using either another AP that was valid at the time of departure and reentry, or returns in H or L status, then the pending AP is not abandoned and can be used for subsequent trips once authorized.

Thanks Spec. She is a FTE and therefore I am optimistic that she will get H1 stamping without any issues. Assuming that her EAD/AP is pending, and she does get stuck with stamping issue, our plan B would be to get her back on H4 visa and use the EAD/AP when she get them.

Let me know if you see any problem with this plan B.

[delguy]

In this case, am I correct that she can travel AFTER her H1 to H4 COS is approved even if the AP is not approved by that time.

Just curious why she needs to wait for H1 to H4 COS if she is visiting India, I believe she can travel outside anytime and reenter after getting H4 stamped in passport. It would have been a problem from H4 to H1 though but not vice versa.