AP filed, not yet approved, have to leave US

D

D'G

New Member
Hi! Thought it is the best place to ask for an advice.

Situation:
AP was filed (concurently with I-485 and EAD) more two months ago presuming it won't take more than 3 months to get it approved (AP). Person has to leave US in a month and it looks (according to the present processing dates on USCIS web site) that AP likely won't be approved by that time.

Questions are:
1) does person have to have AP in hand leaving US that to be able to return and not to abandone I-485?
2) is it possible just to send an approved AP to the person abroad and she could present it to the INS at the port of entry coming back?

I would appreciate all comments and suggestions! It is an urgent matter since preparations for the travel have to be done soon.

Thank you!
 
1) does person have to have AP in hand leaving US that to be able to return and not to abandone I-485?

You must have it at the time of reentering the US

2) is it possible just to send an approved AP to the person abroad and she could present it to the INS at the port of entry coming back?

Very risky. You have to submit your I-94 at the time of departure, from which they can find out that you had left the contry with no AP at hand.

Advise: Wait until you get AP.
 
D'G said:
Hi! Thought it is the best place to ask for an advice.

Situation:
AP was filed (concurently with I-485 and EAD) more two months ago presuming it won't take more than 3 months to get it approved (AP). Person has to leave US in a month and it looks (according to the present processing dates on USCIS web site) that AP likely won't be approved by that time.

Questions are:
1) does person have to have AP in hand leaving US that to be able to return and not to abandone I-485?

Yes. you definetely have to have the AP in hand before leaving USA.

2) is it possible just to send an approved AP to the person abroad and she could present it to the INS at the port of entry coming back?

as far as I know, sending the AP to someone abroad is not allowed. There is a detailed explaination in one of the other postings. I don't have the correct link. also there is some info regarding getting the AP before leaving USA is at www.uscis.gov.
However you can get an emergency AP at your local USCIS office. If your I-140 is already approved then some local offices issues emergency AP.

I would appreciate all comments and suggestions! It is an urgent matter since preparations for the travel have to be done soon.

Thank you!
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DG if the person leaves US without an approved AP, his 485 is considered abondoned, so once you have applied for AP, DO NO leave unless you have a valid AP, no matter what people say, read carefully the filling instructions of AP, it clearly metions that your 485 will be considered abondoned should you leave us without a valid AP.

Secondly, if you really need to leave the country soon, go to the local USCIS office and apply for an Emergency AP. You have to have an emergency reason and should have genuine documents and proof of the emergency situation. For eg. if you are going to a weeding then the weeding invitation, fax from your relatives and so on, if you are going for medical emergency of someone back home then their medical papers and so on. Getting an emergency AP should not be a problem and it will take only a few days to get it.

Don't leave without a valid AP.
 
DGs,
DO NOT LEAVE THE COUNTRY WITHOUT AP IN HAND. ALSO IF THE TRIP IS AN EMERGENCY, YOU CAN GET A LETTER FROM INDIA STATING THE EMERGENCY(LIKE A LTR FROM HOSPITAL OR SOMETHING) AND GET AN EMERGENCY AP FROM THE LOCAL OFFICE.
WHAT'S YOUR ATTORNEY DOING OTHER THAN GIVING YOU ADVISE ON THIS. THIS IS WHAT YOU HIRED HIM FOR. GO AND SIT IN HIS OFFICE AND BUG HIM.
 
MrCoolz said:
DGs,
DO NOT LEAVE THE COUNTRY WITHOUT AP IN HAND. ALSO IF THE TRIP IS AN EMERGENCY, YOU CAN GET A LETTER FROM INDIA STATING THE EMERGENCY(LIKE A LTR FROM HOSPITAL OR SOMETHING) AND GET AN EMERGENCY AP FROM THE LOCAL OFFICE.
Click to expand...

Does the letter have to be from India? What if the person is Pakistani or Chinese or Philipino? ;)
 
just got off the phone with my attorney about this

D'G
My attorney said it is ok to leave the country while your AP is still pending but it MUST BE FILED BEFORE you leave and it's also ok to Fedex it to your country once he/she receives it.

Also, my attorney had a meeting a couple weeks ago with an officer from the Columbus office who is specially in charge of emergency AP. She said that it can only be given in a matter of life or death situation period ! meaning that she needs to see a death certificate or letter from a doctor.
But it all depends on how stringent your local office is; it may be easier.

BTW, whoever read this thread please reconfirm what my attorney said (about leaving the country w/o an approved AP but it's filed before leaving) with your attorney and let me know what you find.
 
brahmachari99 said:
What if the person is Pakistani or Chinese or Philipino? ;)
Click to expand...

Still you need a letter from India. Because Pakistan, China, Philiphines - they all outsourced "letter writing job" to India. :D :D :D
 
sinting said:
D'G
My attorney said it is ok to leave the country while your AP is still pending but it MUST BE FILED BEFORE you leave and it's also ok to Fedex it to your country once he/she receives it.

Also, my attorney had a meeting a couple weeks ago with an officer from the Columbus office who is specially in charge of emergency AP. She said that it can only be given in a matter of life or death situation period ! meaning that she needs to see a death certificate or letter from a doctor.
But it all depends on how stringent your local office is; it may be easier.

BTW, whoever read this thread please reconfirm what my attorney said (about leaving the country w/o an approved AP but it's filed before leaving) with your attorney and let me know what you find.
Click to expand...

The problem is that if you apply for AP, that does not mean you are approved. There could be complication due to RFE or interview. Some district offices (like San Jose, CA) provide AP in person (they do not send AP by mail). Hopefully your I-485 or I-131 is not in district office. However, if your I-485 is transferred to some district office, I-131 can follow the same path too.
Don't be paranoid too much. I am trying to think of the worst case scenario here.

On the other hand, FedEx is reliable, but not 100%. I know people who lost their passport in FedEx when they sent for visa renewal at Washington DC.
There is a provision in I-131 application to send the APs to nearest US consulate (you need to collect it from there). But I don't how to amend that in an application that is already filed.
 
Pralay, you are correct

You're correct there is no 100% guarantee of approval neither is one for I-485 nor for EAD application. I said that under the assumption that you'll be approved and 99.999999... % of the applications that I know (including myself) got approved. And even if there is RFE in most cases your attorney can just reply to it.

So Pralay....have you confirmed with your attorney if it's ok to leave the country before AP is approved (but filed before you leave). Again, this is of course under the assumption it will be approved before you return :p :p
 
sinting said:
So Pralay....have you confirmed with your attorney if it's ok to leave the country before AP is approved (but filed before you leave). Again, this is of course under the assumption it will be approved before you return :p :p
Click to expand...

No, I did not disucuss with my attorney (actually I don't have one bacuuse my GC is already approved). However the travel advisory notice in USCIS site is clear enough that you should not leave country without AP in hand. Getting AP in FedEx is workaround of the restriction imposed by law. Use it in your own risk.
 
So -- in the case that you have a valid visa (like H1) -and- the visa stamping is valid as well, you don't need an AP for travel and re-entry - correct ?

I also assume that traveling with just H1 ( no AP ), would not Impact the pending 485 in any negative manner.

Can somone confirm this ??
 
Unfortunately I am getting contradictory news which make me even more confused. I talked to my lawyer before I have posted my first question - he does not see a problem for a person (in this case - my wife) to leave a country even if her advance parole is not approved yet. His answer was - "as long as I-131 is filed before travelling". I started to question his answer because USCIS seems having a different opinion. But again - in some documents they just say that person must apply for advanced parole before leaving US, in some documents they say that person "must obtain Advance Parole from the INS before traveling abroad".

Looks like an Emergency AP wouldn't work in this case if USCIS considers only death notices or letters from the doctors as an emergency. In this case there are different but very important reasons why person has to travel.

Also, she can't use her present non-immigrant visa (special immigrant category) since it is expiring at the end of next month and this type of visa can't be reniewed when person is in US. And, as I have mentioned at the very beginning, I-485 is already filed.

So I'm just trying to look around and see if something could be done in this case.

Big THANK YOU to everyone for all suggestions!
 
unitednations said:
Could your lawyer be confusing AP and re-entry permit. i-131 covers both types. Re-entry permit is used for greencard holders who will be out of the country for more than one year and less then two years. This permit only has to be filed when one is in the States but they don't need to be here when it gets approved.
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No, it does not look like he is confusing AP and re-entry permit. :confused:

Would be interesting to hear others experience entering US on AP - what INS is checking and etc. :(
 
Dg

The thing that I said about Emergency AP approval must be a matter of life or death situation is for Columbus office. And of course, it's up to the person in charge. As I mentioned earlier your local office may be more lenient or more strict on that matter.

You may want to check with someone who got Emergency AP from your local office or check with the office directly.
 
Emergency AP

Emergency AP normally will be issued from the Service Center only. You can call the National Service Center and ask about Emergency AP. You can fax the details why you need Emergency AP. You may need to show proofs.
 
I140Seeker

No, that's not true. In fact, in Ohio it's usually issued by the Cincinnati office and now the satellite office in Columbus can do it too (under a very strict condition)
 
sinting said:
D'G
My attorney said it is ok to leave the country while your AP is still pending but it MUST BE FILED BEFORE you leave and it's also ok to Fedex it to your country once he/she receives it.

Also, my attorney had a meeting a couple weeks ago with an officer from the Columbus office who is specially in charge of emergency AP. She said that it can only be given in a matter of life or death situation period ! meaning that she needs to see a death certificate or letter from a doctor.
But it all depends on how stringent your local office is; it may be easier.

BTW, whoever read this thread please reconfirm what my attorney said (about leaving the country w/o an approved AP but it's filed before leaving) with your attorney and let me know what you find.
Click to expand...
sinting,

I am not a qualified attorney or claim to be an expert in immigration matters. That being said, I am pretty sure, USCIS is pretty clear that an AP has to be approved before a 485 adjustee (who does not have a valid h1-B or other equivalent non-immigrant visa) leaves the US.

Cheers
 
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