Travel with pending Adjustment of Status

[preethav]

This question is not for me but for my sister. She has just applied for adjustment of status, with AP and EAD through the employment category, but she wants to be able to travel to India in November. It's doubtful that with the current rush for EADs and APs that she'll have her AP in November. She does have her H1-B extension (Notice of Approval to work until next April), but doesn't have a current visa stamped in her passport.

She's getting conflicting information on whether or not she can travel to India on her H1-B approval notice, and get an H1-B visa stamped in her passport at the consulate in India, and re-enter the US on her H1-B visa. She was told by her attorney in CA that if she travels on her H1-B extension notice, and she goes to the consulate to get the H1-B visa, they'll terminate her pending adjustment of status, since she's applying for a visa in the temporary category (and to just wait for her AP to arrive before leaving the US). However, she was told by another immigration attorney friend, that she should be able to travel on her H1-B extension notice and get an H1-B visa stamped in her passport for travel without having her 485 application forcefully withdrawn.

Do you guys know if she'll be safe traveling to India and getting an H1-B visa stamped in passport without jeopardizing her I-485 filing?

Thanks much for any insight.

[ethanwow]

Hello, I asked a similar question some time ago.

http://www.immigrationportal.com/sho...d.php?t=257587

The only difference is that I have a visa stamp in my passport.

I don't think it makes a difference. If my I-485 is still pending on name check next year, I will be applying for H1-B extension and will have the same situation like your sister's if I need to travel.

My understanding is that H1B allows dual intent which one can adjust his/her status. If I were your sister, I would be more worried on getting visa stamp then AOS termination.

Many H1B holders have AOS pending and still use H1-B status to travel freely.

[TheRealCanadian]

Originally Posted by preethav

She was told by her attorney in CA that if she travels on her H1-B extension notice, and she goes to the consulate to get the H1-B visa, they'll terminate her pending adjustment of status, since she's applying for a visa in the temporary category (and to just wait for her AP to arrive before leaving the US).

Wow. Her so-called attorney is completely unfamiliar with the law. I wonder what else this individual has screwed up.

[Triple Citizen]

Totally agree with my fellow Canuck. It seems the attorney is totally clueless to the special advantage that H-1B (and L-1) AOS applicants hold.