A question on travel without AP

H

hero123

Registered Users (C)
I have my tickets booked for india for jan end.
I applied for my AP in end of august 2003 but haven't received approval. Also previous AP has expired. I do have a renewed H1-B extension but the visa on my passport has expired.

Is it ok if I leave without AP approval and get H1 stanped in india.
Does anyone see any risk in it ? or any other advise.

thanxs in advance
 
same situation

Dude
I am in exactly the same situation. Jan end booking, AP / H1B expired. H1B extension et al.
I don't see anything legally missing in your case , but if you have any past history(check my post on AP approval threads for example) - then it may be better to hold on, mutter some curses to BCSI ,prayers to the almighty and put in some contribution to Kashmir's efforts.
Good luck. Do post whenever you get your approval
 
Most aliens who have pending applications for immigration benefits or for changes in nonimmigrant status need Advance Parole to re-enter the U.S. after traveling abroad. Aliens applying for advance parole on the basis of a pending application for adjustment of status must be approved for advance parole prior to leaving the United States in order to avoid the termination of their pending application for adjustment.

http://uscis.gov/graphics/services/emergency/index.htm
 
Hi

everything lokks legal on your case. but be advised that in india embassy peoples are creating lots of issues while stamping, and you never know which stupid idea they can come up with, so take all the documents you have about immigration.

Thank you
 
If you have worked on EAD at any point of time in the past, your H1 status is no longer valid and you have to use AP, other than that there should be no restrictions. Make sure the visa stamping at the other end is taken care off. Just had a friend return from Bombay, after stamping H1, he din't have any issues.
 
I think the biggest risk in this case would be if the consulate denies the visa.

In which case the only option would be to return with an AP (whenever that gets approved), albeit the conditions mentioned in ItsComing's post.

I am not sure on this but I believe BCIS could cancel your pending AOS if the consulate denied the visa.
 
I was in similar situation last year. My AP had expired, did not get my AP renewal in time, but had H1-B papers. I had to go to India on Company business. I went to US Embassy in New Delhi and got my H1-B Stamped and re-entered US using it... No issues whatsoever.

H1-B visa stamping experience was pleasant as well. I decided to apply in person rather than TT Services. Applied on a Wednesday, got my passport with Visa on Friday of the same week. This was in Sept 2003.
 
Originally posted by 140_takes_4ever
If you have worked on EAD at any point of time in the past, your H1 status is no longer valid and you have to use AP
Click to expand...

Unless you used EAD for OPT after graduation, but before applying for H1, 140, 485, etc.; not many folks in that situation.
 
gopher97,

That is right, there is that proviso. Though I was refering to EAD under current AOS hence exluded the exception.

muraari,

Not that your scenario could not happen, but still to hear of a single case where that actually took place. So it is reasonable to assume that if you haven't been out of status are of sound moral character, there is no reason to be denied a H1 visa despite being given a visa inititally to enter the US the first time around. And being an adjustee to boot. So it is safe to assume that you have a high chance of approval in that scenario.
 
Thanks for replies.

mazdur_desi I am not able to open the link mailed by u.

Talked to my lawyer today, as per him if I don't have visa and then I leave the country while pending AP it may be considered abondnment of I-485. But leaving country with valid H1 is fine. Only prob is that I will have to get it stampped in india and use visa to enter US back and hopefully should not have any problems.

Any suggestions ?
 
link

try this:
http://www.immigrationportal.com/showthread.php?s=&threadid=110379

sorry for the problem.
I don't agree with one of the claims made by poongunranar

Kindly allow me to explain. Once, during AP adjudication it is determined that you are not in the country, both your AP and I-485 can be rejected. And since you have already demonstrated immigration intent, filing H1-B (which is a dual-intent visa) may run into rough weather as well

but I may be overlooking something
As for the lawyer - make sure that you spoke to the lawyer himself /herself - not the paralegal. I have been doled incorrect advice earlier by the paralegals.
 
Agree with you on the paralegals! :) Been there done that. Would have definitely gotten buggered if the paralegal had not mentioned what he told me to the lawyer and the lawyer actually called me to correct the situation! :)

Interestingly the matter under discussion was this exact same one of travelling on H1 without AP in hand. :)

So from that long conversation with my lawyer, here is what evolved:
1. It is very much legal to travel on H1 even if you have AOS pending, just that when you enter the country, display the 485 receipt to the immigration officer in order to ensure that the duality of the H1 is held, and your AOS is not marked for abandonment.

2. Those she said I could do the above, she did not recommend it and instead asked me to wait if I could for AP

3. In theory your AOS is actually put on hold while you travel out of the country and then when you re-enter, processing is resumed, but in practice the INS has no bloody clue, and doesn't have the resources to track the above.

4. Going by 3. above, it is technically feasable to apply for renewal AP, travel on current AP, leave and re-enter the country, since your renewal AP should also have been put on hold while you are travelling outside the country. And get approved only after you enter. Offcourse things don't work out the way they are supposed to, thanks to the identical problems reported in 3.

The above is the reason I disagree with poongunranar, not to say I disagree with his opinion completely, but this is a grey area without clear cut demarkations for every eventuality! The interpetion of which is upto minimum pay adjudicators.

How you draw your own conclusions is up to you, but the above is what I believe to be true, and it does seems logical to me. But hey who can tell with INS! :)
 
Why don't you try to ask your lawyer. I had similar case, applied AP renew last Aug. Need to travel to India in Dec. My lawyer called someone and get approval in the end of Nov before I took off. Now I'm back to bay area after a month long traveling.
 
jinglebell,

Wow, can I contact your lawyer? Must have connections with the INS to get your AP expedited like that.
 
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