Status of 485/Impact of GC - While out of country

[djosh09]

Hi-

I got laid off recently from onshore operations of my current employer. I was employed on H1-B, I-140 was approved 2 years ago, I-485 based on employment is pending for more than 1 yr and have EAD also. My H1 has validity for next 1.5 yrs. I can get some job here by doing H1 transfer or using EAD, but decided to move for good and work for the same employer in India. In this case, my understanding is H1-B will be active until I change my employer.

1. Do you know what will happen to my 485 status and what will be the impact to Green Card processing?

2. Can you suggest ways to keep 485/GC active without any issues, as I expect to return to USA at somepoint again when conditions are better?

3. Will it have any impact on the 485 status of my dependents?

4. Can I initiate H1 transfer (if required), while I'm at India?

5. I expect 485 approval to happen only after 5 to 6 years. Can I keep renewing my AP while I'm out of country?

-Josh

 

[mmed]

What is your question? Do you mean you want to stay in India on H visa? or do you mean you want to stay in India and after 5-6 years, they mail you GC to work with it in India? Please clarify.
If you are from India, you do not want H visa or GC to work or stay in India to the best of my knowledge.

 

[djosh09]

485/GC status while out of country for more than a year

Hello-

My question is if I move to India (it is my home country) and work in India and want to return to USA before my H1 would expire, will there be any impact to 485/GC processing? H1 expires after 1.5 yrs.

Thanks,
Josh

 

[TheRealCanadian]

In this case, my understanding is H1-B will be active until I change my employer.

Your H-1 is terminated since your employment has ceased.

2. Can you suggest ways to keep 485/GC active without any issues, as I expect to return to USA at somepoint again when conditions are better?

Have a US employer who will offer you a permanent job. If you do not have one and USCIS issues an RFE, your I-485 and your dependents' I-485s will be denied.

4. Can I initiate H1 transfer (if required), while I'm at India?

You cannot initiate anything. Only your employer can.

5. I expect 485 approval to happen only after 5 to 6 years. Can I keep renewing my AP while I'm out of country?

No. Pray that your I-140 does not get withdrawn.

 

[mmed]

What is your question? Do you mean you want to stay in India on H visa? or do you mean you want to stay in India and after 5-6 years, they mail you GC to work with it in India? Please clarify.
If you are from India, you do not want H visa or GC to work or stay in India to the best of my knowledge.

Thanks for clarification. This plan will not work, your H status will be expired the same day you leave the work in US even if the H stamp in your passport is valid and any time left in the H approval will be dropped too. After you leave the US, mostly your employer will request withdrawal of your I140 and consequently you and your dependents’ (if any) I485 will be denied. If your employer is gentle enough and did not request withdrawal of the I140, mostly the USCIS will send you request of evidence at the time of decision, or even years before that to confirm your employment in US (not in India). This RFE will be triggered because without working, no social security money will be deducted from your salary and every one in USCIS will know by then that you are not working in US (because USCIS and SS are part of homeland security). The other point is, if you traveled without job (this means no H, even if the paper work is still valid; see above) and without AP, you will be considered abandon your I485. On the other hand, if you travelled with AP, after the expiration of the AP and you still out US, your I485 will be abandoned also (AP should be applied for while in US and should be in hand before travelling, by then you can use it to re-enter). For summary, to keep your GC in good shape, you have to work in US in the same or similar job to what is in your LC till GC approved.

 

[TheRealCanadian]

every one in USCIS will know by then that you are not working in US (because USCIS and SS are part of homeland security).

The Social Security Administration is NOT part of DHS. Where do you get such ideas???

 

[djosh09]

thanks for all your inputs. My H1 will not be ceased as I will be working for the same employer in India and my employer will not cease my I-140. Based on the inputs, I understand that for 485/GC to be in good shape I should work in the US or if I plan to work for the same employer in India, I should return to US before the expiry of my AP.

I think I can re-enter US after AP expiry if my H1 is not invalidated during that time and my H1 is valid with the same employer or can do a H1 transfer with another employer and enter US. In this case I understand I can enter US but my 485 is at risk of denial or may have already been denied. Am I correct?

 

[mmed]

The Social Security Administration is NOT part of DHS. Where do you get such ideas???

I apologize, this was my thinking years ago, the SS administration is NOT part of DHS

 

[Jackolantern]

thanks for all your inputs. My H1 will not be ceased as I will be working for the same employer in India and my employer will not cease my I-140. Based on the inputs, I understand that for 485/GC to be in good shape I should work in the US or if I plan to work for the same employer in India, I should return to US before the expiry of my AP.

I think I can re-enter US after AP expiry if my H1 is not invalidated during that time and my H1 is valid with the same employer or can do a H1 transfer with another employer and enter US. In this case I understand I can enter US but my 485 is at risk of denial or may have already been denied. Am I correct?

You can't legitimately use the H1 to reenter the US unless they're rehiring you at their US location. You can use the Advance Parole to enter if the employer is keeping the I-140 and future job offer alive, but that would not put you back into H1 status if you're not being rehired as an H1 US-based employee.

Because your H1 status is gone, you can't do an H1 transfer in the sense of being able to begin work with the next employer while the next H1 is pending. But you can use the EAD while it still valid, or you can apply for another H1 (but you'll have to wait a few months to start working). Another option is to switch to consular processing, and continue to work in India until the GC is approved at the consulate.

If you want to keep renewing your AP repeatedly while working in India, the problem is that you have to be in the US to apply for the next one and wait until it is approved. So that is not practical unless you can spend a couple months each year in the US.

 

[djosh09]

thanks for the expert advice. FYI... My current employer would transfer me from US operations to India operations and they will not revoke my H1/I-140. Changing to CP is great and I can continue to work in India. Does this give me an option to work in the USA later (say after 1 year) with H1 or EAD? After changing to CP, will my EAD be valid? Are there anything other things that I should take care if changing to CP?

Thank you!

 

[Jackolantern]

Does this give me an option to work in the USA later (say after 1 year) with H1 or EAD?

You can use the unexpired H1 to go back to the same employer in the US, but not the EAD because when you switch to CP USCIS will cancel the I-485 (although it may be a few weeks or months lag before they actually get around to cancel it).

 

[JohnThomas82]

thanks for the expert advice. FYI... My current employer would transfer me from US operations to India operations and they will not revoke my H1/I-140. Changing to CP is great and I can continue to work in India. Does this give me an option to work in the USA later (say after 1 year) with H1 or EAD? After changing to CP, will my EAD be valid? Are there anything other things that I should take care if changing to CP?

Thank you!

Although you mentioned it in last few words, please do ensure that the transfer from AOS to CP is completely done prior to departure from the US. I know of few cases where they faced severe problems because of this issue. If my guess is correct, you might be working for a top Indian IT outsourcing firm and if that is the case, it is very unlikely that they will revoke your I-140. Most companies usually take care of transferring AOS to CP quite diligently, but it can vary from individual-to-individual.

Once your GC is transferred to CP, you can only work on H-1B, if you would have one at that time. You may have to factor in when you would be able to come back to US and if you would have a H-1B at that time.

All said and done, good luck !