A status question

civ2ru

Registered Users (C)
Hello!

I'm getting ready to file I-485 semi-concurrently (my EB-1 EA I-140 is already pending at TSC). And I've been wondering whether now is the right time to do it because of status concerns. My current status is P-1 and valid through Jan. 20, 2007, so I may want to renew it for another year when the time comes, to avoid potential falling out of status (in case my I-140/I-485 should get denied). My question is, would I be able to renew my P-1 status while I-485 is pending?

I'd really appreciate any input! If you could direct me to an official memo / fact sheet addressing this question, that would also be very helpful! Thank you so much!!!
 
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Yes, you are right when you say your I-485 will be denied if your underlying I-140 is denied. But you will retain your P visa status even after submitting I-485. Your status is only changed to AOS or ADJ only when you "use" your EAD (if you are applying for one AND then use it).
In other words, if you have not used your EAD card for employment, then you will not be out of status even after I-485 denial. You may want to read the Advanced Q&A section in Mathew Oh firm's website www.immigration-law.com (see questions 81, 79, 83).
I am sure other well known immigration attorneys including Rajiv Khanna have posted Q&A for common immigration related questions. Do a search.
 
2006gc, thank you so much for the reply!!! My main question is, would I be able to renew my P-1 status (to fall back on, just in case) in January 2007 with I-485 pending? You know, immigration intent and everything...
 
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civ2ru said:
2006gc, thank you so much for the reply!!! My main question is, would I be able to renew my P-1 status (to fall back on, just in case) in January 2007 with I-485 pending? You know, immigration intent and everything...

you should be able to do that as long as it is a dual intent visa like H1B
 
2006gc said:
Yes, you are right when you say your I-485 will be denied if your underlying I-140 is denied. But you will retain your P visa status even after submitting I-485. Your status is only changed to AOS or ADJ only when you "use" your EAD (if you are applying for one AND then use it).
In other words, if you have not used your EAD card for employment, then you will not be out of status even after I-485 denial. You may want to read the Advanced Q&A section in Mathew Oh firm's website www.immigration-law.com (see questions 81, 79, 83).
I am sure other well known immigration attorneys including Rajiv Khanna have posted Q&A for common immigration related questions. Do a search.
2006gc and any other experts,

I think that the statement "Your status is only changed to AOS or ADJ only when you "use" your EAD (if you are applying for one AND then use it)" needs some clarification. I want to be clear about this topic because my wife may need to use her EAD before her H1B approval. The legal advice I got was that as long as you maintain H1B (or P-1 in this case) you can work either with EAD or H1B if you remain in the US until your I-485 is denied. The situation is different if you use Advance Parole to enter the US. Only then your status is no longer that of H1B and you cannot use your H1B but you have to use EAD.
 
Hello leviathan,
Well, your wife is restricted to work for a particular employer alone (petitioner) with her H1B1 visa. On the other hand, EAD does not impose such restrictions and she can even take up multiple jobs. So when she uses her EAD, I don't think she can retain her H1B status. If her I-485 is denied, she has to leave the country and enter again on H1 or H4 (i.e., she has to submit a new petition and get visa on her passport). This is what my attorney told us a few months ago, and I think this makes sense.
I am not completely certain if using advance parole will allow your spouse to retain her H1B status or not. I have heard contradictory views on this. But it is usually adviced to use advance parole to travel outside of the US if your I-485 is pending. Take a look at the following posting:
http://www.immigrationportal.com/showpost.php?p=1438480&postcount=17

By the way, I am not an attorney. If your attorney said otherwise, he may still be right as he may be aware of certain clauses in the US immigration law. My statements were based on my attorney's advice and through my own reading of various posts.
 
Guys,

Please let's not wander away from my original question. My status is not H-1B, it's P-1. There's hardly any info about P-1 in these forums, so please allow me to ask that specific question. I don't know if P-1 is a dual intent visa... It takes the same I-129 to renew it as it would H-type visas...

Let's say I apply for I-485, EAD and AP, but I don't use EAD to work or AP to travel - just staying in my current status for now. But since that will expire on Jan. 20, 2007, would I be able to file to renew my P-1 status, even with I-485 pending?

What do you say, 2006gc? Or anyone else? Thank you!
 
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What is P1 Visa ?

civ2ru said:
Guys,

Please let's not wander away from my original question. My status is not H-1B, it's P-1. There's hardly any info about P-1 in these forums, so please allow me to ask that specific question. I don't know if P-1 is a dual intent visa... It takes the same I-129 to renew it as it would H-type visas...

Let's say I apply for I-485, EAD and AP, but I don't use EAD to work or AP to travel - just staying in my current status for now. But since that will expire on Jan. 20, 2007, would I be able to file to renew my P-1 status, even with I-485 pending?

What do you say, 2006gc? Or anyone else? Thank you!
 
civ2ru said:
Guys,

Please let's not wander away from my original question. My status is not H-1B, it's P-1. There's hardly any info about P-1 in these forums, so please allow me to ask that specific question. I don't know if P-1 is a dual intent visa... It takes the same I-129 to renew it as it would H-type visas...

Let's say I apply for I-485, EAD and AP, but I don't use EAD to work or AP to travel - just staying in my current status for now. But since that will expire on Jan. 20, 2007, would I be able to file to renew my P-1 status, even with I-485 pending?

What do you say, 2006gc? Or anyone else? Thank you!

Do some search on your own. My quick google search finds the following.

--
"Finally, P visas are considered dual intent. That means that while a P nonimmigrant must seek to enter the US temporarily and must show a residence abroad they do not intend to abandon, they can pursue permanent residency without violating the terms of the visa."
--

I'm not sure the requirement "must show a residence abroad they do not intend to abandon" is only applicable to P-1.

If it is dual-intent, then you should be able to renew P-1 regardless of I485 status.
 
P visas are for individuals coming to the US to perform in athletics or entertainment (including artists) who could not meet the extraordinary ability requirement for the O-visa category. Dual intent is recognized if the applicant maintains a foreign residence. Thus I am not sure if you need to pursue consular processing. Check this with an experienced immigration attorney.
I was on O-visa prior to my current status. It is dual intent and O-1 visa holders can apply for permanent residence while working in the US (similar to H-visa holders).
 
Leviathan and 2006gc, thank you so very much for your input!!! According to your responses and my research:

8 CFR 214.2(p)(15)
"Effect of approval of a permanent labor certification or filing of a preference petition on P classification. The approval of a permanent labor certification or the filing of a preference petition for an alien shall not be a basis for denying a P petition, a request to extend such a petition, or the alien's admission, change of status, or extension of stay. The alien may legitimately come to the United States for a temporary period as a P nonimmigrant and depart voluntarily at the end of his or her authorized stay and, at the same time, lawfully seek to become a permanent resident of the United States. This provision does not include essential support personnel."

So I should be good to go (in that relation). Thanks again!!!
 
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civ2ru,
You are good. The statements are very clear. You can apply to do adjustment of status as well if your priority date is current.
 
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