485 Processing when outside US for special project

[Khan_Man]

Hello Everyone,

All my docs have been approved during my GC processing except my 485. My I-140 was approved a few weeks ago. My company requires me to go to a subsidiary for a special project that might span a year with frequent trips back to the US. Is this something that I can agree to without jeaprodizing my GC processing. They are awaiting a reply from me and I was hoping someone could advise me.

Thank You!

SK

 

[ginnu]

Hello Everyone,

All my docs have been approved during my GC processing except my 485. My I-140 was approved a few weeks ago. My company requires me to go to a subsidiary for a special project that might span a year with frequent trips back to the US. Is this something that I can agree to without jeaprodizing my GC processing. They are awaiting a reply from me and I was hoping someone could advise me.

Thank You!

SK

----------- first apply the AP and need approved AP in hand before you go out of US and AP is valid for 1 year and you need to be back before the AP expires. if the I-485 is approved while you are out of US then you can enter with valid AP and need to visit local office with I-485 approval notice and then get the GC stamp on passport.
** you canot be out of US more than year becase AP will expire in 1 year and if AP expires then POE officer will not allow you to enter US.

 

[rpranesh]

----------- first apply the AP and need approved AP in hand before you go out of US and AP is valid for 1 year and you need to be back before the AP expires. if the I-485 is approved while you are out of US then you can enter with valid AP and need to visit local office with I-485 approval notice and then get the GC stamp on passport.
** you canot be out of US more than year becase AP will expire in 1 year and if AP expires then POE officer will not allow you to enter US.

Unless you have a valid H/L with your current employer.

 

[pralay]

Unless you have a valid H/L with your current employer.

It depends. As he/she going for long term with the subsidiary, probably he/she won't be in US employer's payroll anymore. In that case his/her US H1 will become toast. Only way he can keep his H1 alive is being in payroll in US employer and getting atleast the salary amount mentioned in H1 LCA - even though he will be working abroad.

 

[tammy2]

It depends. As he/she going for long term with the subsidiary, probably he/she won't be in US employer's payroll anymore. In that case his/her US H1 will become toast.

If some one is not in US then Why does he needs to be on Payroll?

 

[pralay]

If some one is not in US then Why does he needs to be on Payroll?

If he is not in US employee payroll, his H1 status is not valid anymore. If his H1 status is not valid anymore, he cannot travel to USA "frequently" with his H1 visa stamp - pretending that he is an employee of US employer. In that case he must use AP.

 

[Khan_Man]

Guys it looks like my lawyer has something else to say.. should I beleive her or just take the assignment...

I have my Advance Parole, EAD, I-140 approved already.


Serhat -

An overseas assignment may interfere with your pending green card application, which is based on your US position with Kohler (outlined on the labor certification and the I-140 petition). We have had issues in the past where employees are transferred abroad while their I-485 is still pending. One option would be to withdraw the I-485 and request that consular processing be commenced instead or withdraw the pending I-485 and refile when you are back in the US. This will delay the green card issuance and would require additional filing and legal fees.

If you are not willing to withdraw the I-485, I would try to postpone the assignment until after you are approved. Please note that even if you are a permanent resident when you are sent on a foreign assignment, there are certain things to keep in mind, namely - to avoid the risk of abandoning your permanent residence, you are required to maintain ties to the US and make regular trips back to the US.

Please let me know if you would like to discuss in more detail and we can schedule some time this week. Thanks.

 

[TheRealCanadian]

If he is not in US employee payroll, his H1 status is not valid anymore. If his H1 status is not valid anymore, he cannot travel to USA "frequently" with his H1 visa stamp - pretending that he is an employee of US employer. In that case he must use AP.

If he's not physically in the US, his H1 status is not valid anymore.

However, the H1 petition is very much alive, and if he is returning to the US to resume employment with his H1 employer under the same conditions before the H1 expires, he can certainly use it to return.

 

[pralay]

If he's not physically in the US, his H1 status is not valid anymore.

However, the H1 petition is very much alive, and if he is returning to the US to resume employment with his H1 employer under the same conditions before the H1 expires, he can certainly use it to return.

That's the point. He can enter using his H1 and resume his employment upon returning. However, he cannot visit frequently (as he mentioned) with his H1 visa without resuming US employment. For that reason he definitely needs AP.

One the other hand, if he still US employee and gets US salary, his H1 status could be considered valid - provided his visit abroad is considered "business visit" (instead of transfering him and making him an employee of foreign subsidiary). In that case he can use his H1 visa for frequent US travels.

 

[Khan_Man]

How about this guys.. I accept the position and am transferred to the Subsidiaries payroll. So my H1 is invalid. But I have my AP to enter back into the United States. What if a year passes and I havent got my I-485 approved, can I apply for a new AP and a new EAD based on the fact that my I-485 is still being processed? I would be returning to the US every 3 months at least. Is this a risk that would classified as a small or major risk?

 

[TheRealCanadian]

can I apply for a new AP and a new EAD based on the fact that my I-485 is still being processed?

Sure, but you must be in the US when applying for the new AP, until it is approved and received.

 

[pralay]

How about this guys.. I accept the position and am transferred to the Subsidiaries payroll. So my H1 is invalid. But I have my AP to enter back into the United States. What if a year passes and I havent got my I-485 approved, can I apply for a new AP and a new EAD based on the fact that my I-485 is still being processed? I would be returning to the US every 3 months at least. Is this a risk that would classified as a small or major risk?

There is no risk involved in this case. Only thing is that you should not leave USA before AP approval and must comeback before it expires. Then you can renew it again, get approval and leave again. Also for FP, interview (if any) you need to come back and attend those appointments.