Advance Parole question - urgent

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newtov8

Registered Users (C)
Hi,

I have applied for AP (renewal)and had to leave US due to emergency. I tried to get the AP at local office, but they said that since my 485 was filed at the NSC service center, I should be asking them.

Any way, I am out of US now. I have the LIN# for my AP application. BCIS website is showing that this type of case is taking 299 days to 355 days for processing.

I am wondering is that's the case I won't be able to return to US for 1 year and in the meantime if my 485 gets processed, I will not get my green card.

Please suggest what are my options to get back to US after next 3 weeks. Is it taking this long to process AP application. Last time I got my AP with 3 weeks. My receipt date is 13 May 03.

Can I apply for travel visa or something to get back into US?

If I apply for a new H1-B, will it stop my 485 processing?

Thanks a lot in advance for your help.

Any one in similar situation?

newtov8
 
Actually you were not supposed to leave the country without a valid AP in hand. That's what my attroney told me when I had an emergency and didn't have AP. He said it'll be treated as an abondanment of your 485.

The only way you can come back into this country is to get your H1B processed through premium processing. Talk to your attorney before making any decision.
 
I was in a similar situation last year. When i approched Newark local office for emergency AP, they won't even let me in because i was at the office @ 8AM and they already let enough people in for that day. I then drove to Cherry Hill(another local office in NJ, not within the jurisdiction) and explained the emergency situation and Newark's response Cherry hill accepted my AP appln. and issued AP in 2 days.

If you check BCIS site for Advance Parole, it clearly says you should get your AP approved before leaving the country. Even if you get your AP approved now, you will not be able to use it.

BTW, did you have a valid H1 before you left the country ?
If you still have a valid H1 stamp in your passport, you can enter using that. BCIS site says, H1/L1 can have travel without AP.

If not, like gc_howlong said you have to get a new H1. Before that you have to get a lawyer and consult.
 
What You Did Was Risky

To the best of my knowledge leaving the us without AP (assuming you need it), means abandonment of your petition. You did not mention if you were working on a H1-B or using your EAD. If you still have a valid H1-B for the employer you are working for, you don't need AP for reentry.

Firstly you need to consult a lawyer, because you have created a big problem for yourself. The premium H1-B might be a good choice. You could also wait out of the US until your AP is approved, it is not really taking a year more like 2-3 months, then you could try using that to reenter. However they do tend to scrutinize people using their AP at the POE fairly carefully and if they connect the dots between your AP approval date and your departure date you could be in real trouble. Your other bad option is if you still have your I-94 you could try coming in by road from Canada, you might get waived through again if you get stopped you are going to have big problems. Both of these self help options are very bad ideas. Consult a lawyer.
 
Gurus (Pork, Ghee) ... Please comment.

I suppose the BCIS guidelines on leaving the country w/o AP is ambigious. It states that if you were present w/o status for more than 180 days, then your re-entry may be denied.

http://www.immigration.gov/graphics/publicaffairs/advisories/advisory.htm


AP processing is taking long now a days, and if some one's AP is pending for 2-3 months and he/she has to leave the country (may be not for emergency), it may not necessarily mean that he/she is abandoning the case.

Gurus (Pork, Ghee) ... Please comment.
 
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actually, in this case, the regulations are not ambiguous; they are rather clear: leaving the u.s. without an AP if there is no other means of return (e.g. H1/H4/L1/L2 visa) may constitute an abandonment of a pending AOS in the eyes of the applicable laws. i say "may", because - and i am just thinking out aloud - that there may be recognized extenuating circumstances built into the law that might mitigate newtov8's action of leaving the u.s. without AP. on the other hand s/he may have a valid H or L visa that s/he could use to return to the u.s... otherwise s/he should contact their lawyer. a new premium-processed H1 might get them back in, but the matter of possible abandonment of AOS might still need to be addressed. this one's definitely for a good lawyer.
 
h1 expired

hello all.

thanks a lot for the response. Since I already made the mistake, but I had no other way in the case of emergency.

I was using EAD to work for a employer. My H1-B was expired long back ago.

Do I need to find an employer for H1-B premium processing or my lawyer can do it on his own? I am happy to bear all expenses related to H1-B prem. processing, but how could I find a company, if that's the case.

The company who sponsored my H1-b is already out of business, I guess, in this case there is no option of extending my old H1-B that is expired about 2 1/2 yrs ago.

I am not sure what can I do in this situation in getting back to US.

Please suggest, I really appreciate your help and advice.

Thanks a lot.

newtov8
 
what you need to find as soon as possible is a new employer in the u.s.. it could be either the new employer's lawyer or your own who takes care of the H1 processing - that is all secondary. if you can find an employer and get a new H1B to return to the u.s., your i485 might yet be salvaged, owing to AC-21 law, if by the time your i485 comes up for adjudication, you are in the u.s., and you are employed. of course, your job also needs to match, but, at this moment, get any kind of job that will get you back in the u.s., and then worry about the rest later.

good luck!
 
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