Does time out of the country count when I was on a different Visa?

[WienerPhilharmo]

Hello, here's my friend's scenario.

He travelled out of the United States July of 2008 to work in Asia, back then he was officially on H4 dependent visa, but received advanced parole from his green card application. Advance Parole will not expire until October of this 2009. He just got his green card March 25th mailed to him at his U.S. home, and his parents sent it to him in Asia. He plans on coming back to the states sometimes in August of this year.

So the question is this, do you think it will be a problem coming back to the U.S. this august considering he has left the united states for more than a year, but he got green card only march 25th of this year? So technically, he only been away less than 5 months WITH the green card, the previous 8 months was on a H4 dependent visa with advanced parole? Does that matter at all? Thanks

[Jackolantern]

The time outside the US before green card approval won't count against him, but the time spent outside right after the GC approval won't count towards citizenship (his 5-year clock will start when he first enters the US as a permanent resident).

But he'll have to be careful what he says at the airport when they ask him how long he's been away. Instead of saying 13 months, he should say "this is the first time I am entering the US with a green card."

However, I don't think that Advance Parole is valid, because if one leaves the US before it is approved it cancels the Advance Parole. If he was outside the US since July 2008 that must mean he left before the AP was approved. If he didn't have the H4, his I-485 would have been considered abandoned when he left the US.

[AllisonDanby]

Originally Posted by Jackolantern

The time outside the US before green card approval won't count against him, but the time spent outside right after the GC approval won't count towards citizenship (his 5-year clock will start when he first enters the US as a permanent resident).

But he'll have to be careful what he says at the airport when they ask him how long he's been away. Instead of saying 13 months, he should say "this is the first time I am entering the US with a green card."

However, I don't think that Advance Parole is valid, because if one leaves the US before it is approved it cancels the Advance Parole. If he was outside the US since July 2008 that must mean he left before the AP was approved. If he didn't have the H4, his I-485 would have been considered abandoned when he left the US.

Why is the advanced parole not valid? It was granted and sent to him to his home mail, and his parents sent it to him in Asia. Is this type of mailing not allowed?

Other concern is, are you allowed to be away from USA while they grant you green card? Could they raise any red flags about how he got the green card while away?

[Jackolantern]

Originally Posted by AllisonDanby

Why is the advanced parole not valid? It was granted and sent to him to his home mail, and his parents sent it to him in Asia. Is this type of mailing not allowed?

If you leave the US before the Advance Parole is approved, it is invalidated if they know about the timing of the departure.

Other concern is, are you allowed to be away from USA while they grant you green card?

Yes, it is OK. Otherwise people would be stuck inside the US when waiting for their card, in fear that their card would be approved when they are traveling and they'd be unable to re-enter the US. But if you're going to leave the US with a pending I-485, you need an H1 or H4 or L1 or L2 or Advance Parole that was approved before leaving the US.

[mmed]

Originally Posted by AllisonDanby

Why is the advanced parole not valid? It was granted and sent to him to his home mail, and his parents sent it to him in Asia. Is this type of mailing not allowed?

Other concern is, are you allowed to be away from USA while they grant you green card? Could they raise any red flags about how he got the green card while away?

As said above, to use AP the departure day should be after the AP issue date of the AP, it is not the mailing issue.
After GC approval, the situation is completely different, before it was pending GC and the person can stay overseas as long as he/she has H4 status or valid AP (as said, issued before departure).
From the day of GC approval the clock will be readjusted
1- no stay overseas for more than 6 continous months
2-from 6moths -1 year, this will be what they call seeking admission with some possibility of denial of entry
3-more than 1 year and up to 2 years, needs another AP and again applied when he is in US, more than 2 years with or without AP, the GC will be gone)

[WienerPhilharmo]

Thanks for the responses everyone. I'm a bit worried now that my green card won't be valid because my AP is not valid...

How would the USCIS know when/if I left the US? I simply shown the airline my japanese passport before boarding the plane...I didn't go through any US government customs or anything.

[Jackolantern]

Originally Posted by WienerPhilharmo

How would the USCIS know when/if I left the US? I simply shown the airline my japanese passport before boarding the plane...I didn't go through any US government customs or anything.

Since 9/11, airlines transmit passenger information to the US government. The airline certainly has at least your name and address; with enough effort USCIS can correlate the information and find out that it's you. If the airline agent recorded your passport number in the system when you checked in, it would become that much easier to connect the dots and know that it's you who left the country on a particular date.

And if they're in doubt, they can just ask when you left. Whatever date you tell them, they can look through the information provided by the airlines to check if somebody with your name flew to that country on that date on that airline.

But you're OK if you had an H4 stamp in your passport. If you use the H4 (assuming it has not expired) or the green card that was sent to you, either one will get you back into the US regardless of the Advance Parole.

[mmed]

Originally Posted by WienerPhilharmo

How would the USCIS know when/if I left the US? I simply shown the airline my japanese passport before boarding the plane...I didn't go through any US government customs or anything.

This question has been asked by many, even highly educated ones. If the US will not know every one's departure date, how then it enforce the laws for residency, citizenship requirements, security issues ......etc. Simply instead of employing an army of officials to monitor thousands exiting every day, others (airlines) do that for free to the US and obviously most if not all other countries will record your entrance after you left US (this = exit US and entrance the other country). I bit that most other countries will give a copy from those records to US for free too . Some try to make themselves intelligent by purposefully losing their passports and get new ones to hide stamps!!! The presence or absence of exit or entrance stamps in the passports has no thing to do with the fact of departure or arrival, it is something for the own passenger record and if US want to double check, 100% the travelers passports will not be the source for that.

[dms1]

Originally Posted by WienerPhilharmo

I'm a bit worried now that my green card won't be valid because my AP is not valid...

Don't you mean your "friend's" green card?