Traveling with AP pending

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lprkhoj

Registered Users (C)
Folks,

I am thinking of filing for AP NOW and here's what I am looking to get an opinion on:

I might travel abroad in December and if I do, I'd get H-1B stamped to re-enter. However, question is what'd happen to the pending AP (assuming its still pending which is highly likely)? Would it be usable for future use in case H-1B is transferred and I don't wish to get it stamped?

I-131 instructions do mention that if AP is pending, it would be deemed abandoned if applicant leaves the country, but I have also read cases where people have had their APs approved while they were outside the country - and I'd like to believe that they must have used it for a subsequent visit (correct me if I am wrong).

Solicit advice/opinions.

Thanks.

PS: Sorry for posting this query here but this being the most active forum, its more likely to get a quick response.
 
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lprkhoj said:
Folks,

I am thinking of filing for AP NOW and here's what I am looking to get an opinion on:

I might travel abroad in December and if I do, I'd get H-1B stamped to re-enter. However, question is what'd happen to the pending AP (assuming its still pending which is highly likely)? Would it be usable for future use in case H-1B is transferred and I don't wish to get it stamped?

I-131 instructions do mention that if AP is pending, it would be deemed abandoned if applicant leaves the country, but I have also read cases where people have had their APs approved while they were outside the country - and I'd like to believe that they must have used it for a subsequent visit (correct me if I am wrong).

Solicit advice/opinions.

Thanks.

PS: Sorry for posting this query here but this being the most active forum, its more likely to get a quick response.
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AP need to be filed in US and approved BEFORE departure from US if you want to enter with AP. if you go out of US and AP is not approved before you go out you cant use that AP
if your H1 visa stamp is expired then you need to get H1 visa stamp and then enter on H1 status
 
Very well understood, Ginnu and thanks for the response. But the query was, if an AP is pending (and I am not wondering how and what to use to re-enter just yet), would it be considered abandoned if the applicant leaves the country, or can it be used, upon approval, to re-enter subsequent to a future/next travel abroad, irrespective of H-1B status at that time.

I am talking about two travels abroad. Re-entering after the first isn't an issue, however, can an AP filed prior to and not approved before the first travel be used to re-enter (upon approval) subsequent to the second trip. I wish to use H1B to re-enter the first time and AP the next.

Appreciate opinion!
 
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if you are very sure of getting your h1 stamped with no issues and you have your 485 receipt, I dont see any problem in you not waiting for your AP.

I'm not sure of the rule that your AP application will be abandoned if you leave the country before it is approved, still no harm you can re apply later if you required.
 
Vj...

Yes, I agree with you. I need to evaluate the risks involved with H-1B stamping with my lawyer and my capacity in taking those risks before filing for AP. But even if it gets abandoned - information now verified that it would be - it could be re-applied for without affecting AOS. Again, all this in the event I travel before AP is approved.

Thanks all for sharing your opinions.
 
lprkhoj said:
Very well understood, Ginnu and thanks for the response. But the query was, if an AP is pending (and I am not wondering how and what to use to re-enter just yet), would it be considered abandoned if the applicant leaves the country, or can it be used, upon approval, to re-enter subsequent to a future/next travel abroad, irrespective of H-1B status at that time.

I am talking about two travels abroad. Re-entering after the first isn't an issue, however, can an AP filed prior to and not approved before the first travel be used to re-enter (upon approval) subsequent to the second trip. I wish to use H1B to re-enter the first time and AP the next.

Appreciate opinion!
Click to expand...
Read the below link
http://www.ilw.com/immigdaily/news/2006,1020-advisory.pdf
 
Vj...

Seems like the AP that you've applied for would be deemed to have been abandoned if you depart the country. 8 CFR §54.3(d)(5) addresses this.

Goto
http://www.uscis.gov/propub/ProPubVAP.jsp?dockey=724ce55f1a60168e48ce159d286150e2

and check the following...

54.3 Adjudication.
(d) Adjudicative Issues . Review the entire application, and pay particular attention to the following.
....
(5) Abandonment of Application . The application is considered abandoned if either:
• The alien applied for admission at a port of entry prior to the decision on a Form I-131 filed on behalf of an alien who was outside the U.S. at time of filing, or
• The alien departed from the U.S. prior to the decision on the Form I-131 in a case where the alien applied for advance parole in order to depart from and return to the U.S.
Note: If the alien is an applicant for adjustment of status, departure prior to the approval of the Form I-131 also results in the adjustment application being deemed abandoned.
​
​

​
Appears that H-1B holders aren't excluded from the abandonment clause and that's what I have been informed by my lawyer. Re-applying for AP isnt a problem since you can re-enter on H-1B and AOS is unaffected.
 
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lprkhoj said:
Vj...

Appears that H-1B holders aren't excluded from the abandonment clause and that's what I have been informed by my lawyer. Re-applying for AP isnt a problem since you can re-enter on H-1B and AOS is unaffected.
Click to expand...

Thanks for this reference.

For a h1 visa holder, exiting out of the country and re entering will affect only the 131 application and wont affect the 485 application.

Is this true?
 
vj66321 said:
Ginnu

This document doesnt talk about H1 B visa holders. I'm scheduled to travel out of the US this month, have a pending AoS and AP. I will be travelling and re entering with my current H1.
---if you have H1 visa stamp or get will H1 visa stamp then you can enter with H1 visa stamp.if your H1 visa stamp is expired and you have to get new H1 visa stamp from US consulate then the risk is how you will enter if H1 visa gets rejected?
This is what I heard from my attorney as well.

Please clarify if you think I'm doing something wrong that will harm my AoS.
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--------------------
 
Hi,

My H1 (which is NOT stamped on my passport) is valid until Apr 2008. I have applied for EAD and AP which have both been approved. My application was sent Jul 3 to NSC. I still have not received any Biometrics appointment. Here are my questions:

1) Does it take a really long time for the FP notice to be received? Should I be concerned? I tried calling the customer service but am only getting a recording.

2) I am planning to leave the country in January. Since my H1 is not stamped on my passport, I will be entering through AP. Once I leave, does this mean my H1 is no longer valid since it is not stamped? Can I still apply for H1 extension after my return while I wait for the result of my I-485? Or does this mean it is necessary for me to continue working now under EAD? I am hoping not to go that route (EAD) while I am waiting for the I-485 result, because I heard, once I work on EAD, I can never go back to H1.

Appreciate your advise on this. Thanks!
 
amie1 said:
Hi,

1) Does it take a really long time for the FP notice to be received? Should I be concerned? I tried calling the customer service but am only getting a recording.
Click to expand...

Given the huge backlog, delays are expected. But keep calling them up.

Once I leave, does this mean my H1 is no longer valid since it is not stamped?
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No, you'd continue being on h1b if you return - using AP - and remain employed with the h1b petitioner. You may even subsequently change jobs upon getting the h1b transferred to a new employer.

Can I still apply for H1 extension after my return while I wait for the result of my I-485? Or does this mean it is necessary for me to continue working now under EAD? I am hoping not to go that route (EAD) while I am waiting for the I-485 result, because I heard, once I work on EAD, I can never go back to H1.
Click to expand...
The above should answer that... but reiterating, you may get back on h1b like you are now and avail of all the benefits that come along with it, extension included. And to clarify on H1b -> EAD -> H1b transfers, they are legally possible as long as you have time left from your 6 yr limit. The H1b subsequent to EAD would not be subject to annual quota either.

But you are right, EAD should always be just an option in your back pocket, to be used in exigencies only.
 
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lprkhoj said:
Given the huge backlog, delays are expected. But keep calling them up.


No, you'd continue being on h1b if you return - using AP - and remain employed with the h1b petitioner. You may even subsequently change jobs upon getting the h1b transferred to a new employer.


The above should answer that... but reiterating, you may get back on h1b like you are now and avail of all the benefits that come along with it, extension included. And to clarify on H1b -> EAD -> H1b transfers, they are legally possible as long as you have time left from your 6 yrs quota. The H1b subsequent to EAD would not be subject to quota either.

But you are right, EAD should always be just an option in your back pocket, to be used in exigencies only.
Click to expand...

Thank you sooo much for your reply!
 
I have a similar situation as amie1:
PD 12/31/2003 ; EB-3
I-485 received 6/27/2007
EAD issued 8/2/2007
I filled and received AP.
I'm still on H1-B (my second extension, will expire 2/2009), but not in passport. I would like to travel, and I understand I have two choices:
1. Apply in US embassy for H1-B in passport - it is costly (traveling to poland) and may require 2 weeks off.
2. Use my AP if I want to travel only for a weekend to Cancun for example.

Also, I'm thinking about getting married, should I keep my H1-B status, or try to use I-485 for my future spouse?

Which choice for traveling is better, considering that If my I-485 would ever be denied, I wouldn't be sorry not being on H1-B, another words, I don't care about my H1-B no more, unless it is necessary to give status to my future spouse.
I'm not planning to use EAD, I will continue working for my employer (whom I have H1-B from), all I need is to travel, without jeopardizing future case, neither mine nor my future spouse.
thx.
 
mjakub76 said:
Also, I'm thinking about getting married, should I keep my H1-B status, or try to use I-485 for my future spouse?
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If your future wife is outside US, the only way she can enter as your dependent is on an H4 implying you have to maintain H-1B status (or unless she gets her own visa). You may marry her and then apply for her I485 if your PD is current at that time. One caveat, its risky if she enters on a non-immigrant intent F1 or B1/2 visa and you file for her I485 within 90 days.
 
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Valid H1-Stamp in PP - Do I still need AP?

Hey Guys - I have a similar question - My H1-B is already stamped in my passport and does not expire until 2009.

My I-140 is pending and so is the I-485. I have my EAD but have not used it and am still maintaining my H1 status.

Question is can I travel out of the country based on this H1 stamp in the passport and re-enter using it or do I need AP?

This issue is really controversial and different lawyers are providing different opinions. I read on Sheela Murthy's website that people with valid H1 stamps don't need AP, but then my own lawyer says it is best to have it before travelling.

Interestingly, USCIS says here that H1 visa holders don't need AP.

Thanks in advance.
 
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