AP question again - urgent !

C

chola

Registered Users (C)
AP/EAD renewal question:

I-485; ND 08/01;
3rd EAD (valid thru 06/04)
3rd AP (validity 12/03 thru 12/04) - took 8 months to get this.

We really got screwed due to lost AP approvals - cldn't even go for a death in the family. We are headed to chennai this friday. Anticipating a delay in processing AP's, I had requested
my attorney to apply for renewal of 4th EAD and AP BEFORE we depart (assuming that we'll be back before it is approved). I am expected back late Feb 04, and my wife is expected
to return last week of March '04.

I am now really confused reading the previous posting. The attorney really didn't discourage me from renewing just 1 month into our current AP. And certainly didn't even bring up any issues
that could potentially arise.

It is my understanding that when the AP is valid between 2 dates, one gets to travel anywhere any place as long as the dates aren't violated . I certainly am confused over the connection between traveling within these "valid dates" and processing another application at the same time.

Gurus's pls clarify.
chola
 
chola

Nowhere in the rules is it said that one can be overseas when an AP is pending for approval, even though the beneficiary may have travelled abroad with a previous AP or a valid visa. All it says is that, during the processing of a valid travel document, the beneficiary should be within the country and should not have abandoned it. Kindly clarify this critical aspect by "challenging" your attorney with this counter-question. He will really start to think deeply enough to either consult his AILA friends or even talk to an Immigration Officer.

Alternatively, you can visit your local-office to talk to an Immigration Officer to clarify this. I am not sure, how receptive the local office folks would be.

Gurus, please jump in and throw your two cents....
 
What I understand is that chola has a valid 3rd AP upto 12/04 and that you will apply for a 4th AP very soon.

If you and your spouse are going to be back in the US before 12/04 and y'all use your 3rd AP at the POE , I see no problem in it.

The only issue is if your 4th AP is approved before you get back, there could be some misunderstanding at the POE.

Guys, correct me if I'm missed something.
 
I agree that the wording of the I-131 form suggests that one should not leave the country between filing for an AP and it being approved. However, I got through three APs and travelled extensively whilst renewals were pending and my lawyer (who at the time was president of the AILA) never even suggested that this would be a problem.

I think the underlying problem is that the AP system was never designed to be used to allow unlimited free passage whilst awaiting GC approval. The whole system is hideous dated in its approach and needs revising to match the modern lifestyle of people travelling much more frequently than in the past. If the UCSIS did decide to enforce the 'letter of the law' then it would cripple businesses who rely on employees with AOS pending travelling internationally.
 
I have also traveled used my AP when the next one was in process. I never even thought through any of the implications but I certainly didnot have any issues getting back in using the already approved AP.
 
If you don't have AP document and applied then you are not supposed to leave the country.

If you have AP document approved and valid and the other one reneval is pending you can travel, the reveval is for your next visit if you specified. This situation there is no problem. Because you have valid travel permit and coming on the valid permit. You are not violating any visa laws.

If you have H1 Visa and travelled also applied the AP document when it is aproved you are in other country some one sent to you the approval notice before coming. You can use that also. Here also there is no violation of the visa laws.

BaSh
 
Chola,

Personally, I think its better to apply for AP renewal after your return to US. If you apply before, your AP may considered pending at the POE and creates problems.

You have enough time to apply for the AP renewal after your return (if you return between Feb- June). Hopefully, you will even get your Green Card before!! I understand that it took you a long time for this AP renewal. But, it doesn't meant that it will ALWAYS take that long. (It took me 11 months to get my first EAD, but no problmes for the 2nd and 3rd)
 
Aptly said, DMS

Originally posted by dms
I think the underlying problem is that the AP system was never designed to be used to allow unlimited free passage whilst awaiting GC approval. The whole system is hideous dated in its approach and needs revising to match the modern lifestyle of people travelling much more frequently than in the past. If the UCSIS did decide to enforce the 'letter of the law' then it would cripple businesses who rely on employees with AOS pending travelling internationally.
Click to expand...
You have said it well. AP was designed to serve as an adjunct travel document -- more of an exception to be used for extreme travel contingencies. It was never designed to be a sort of visa du juor and usually, one didn't have to undergo the travail of getting 3 or 4 o 5 APs before getting the GC approved. Also, until recently the processing time for AP was 55 days. In fact it is only TSC which is taking 200 days for AP. So, one can see how AP processing and the ramifications have changed a lot these days. As DMS has said, if INS at a later date is to go by the book, it can seriously affect one's chances. No doubt, such a puritanic interpretation will be Procrustean, but then that is what INS is. This whole AP sordid business has started to become a nightmare to many.

Still one has to underscore my assertion that all these 'exceptions' have happened, i.e., approvals of renewal APs have happened when one is basically back in the US. Can you folks confirm the fact that your APs/AP-renewals happened when you were overseas?

In any case, I see this as pretty risky. For reasons mentioned, it would behoove well for Chola to apply for renewal after the trip.
 
Dms and ftjquest:

Since you say that you traveled used AP when the next one was in process, would you please pick which scenario apply to your case.

#1
travel with valid AP when the new AP is pending, the new AP got approved BEFORE you came back with the valid AP. And later on you used new AP travel and no problem at POE

#2
travel with valid AP when the new AP is pending, the new AP got approved AFTER you came back with the valid AP. And later on you used new AP travel and no problem at POE

There are another thread discuss it: http://www.immigrationportal.com/showthread.php?s=&threadid=110379
 
I-131 form states this

If you travel before the advance parole document is
issued, your application will be deemed abandoned if:
1. You depart from the United States; or
2. The person seeking advance parole attempts to
enter the United States before a decision is made on
the application.
Click to expand...
Form I-131 Instructions (Rev. 09/19/03) N (Prior versions may be used until 12/31/03) Page 3

Usually, there should be caveats like, "these conditions do not apply for AP-renewals." See, such a clause is nowhere to be found and is the basis for such an interpretation for possible risk at:
  1. POE
  2. Adjudication of AP/I-485 by INS
  3. I-485 RFE for proof of continued status
    [/list=1]

    The document is here: http://uscis.gov/graphics/formsfee/forms/files/I-131.pdf
 
sd_eagle

I certainly encountered scenario 2 on a number of occasions, and I think I did hit scenario 1 once, but I can't remember for sure.

Incidentally, everyone here is making the assumption that the USCIS knows immediately that you have left the country. However, I remember reading somewhere a few months ago that they don't have a regimented system for entering details from I94s surrended at the point of departure, and they are often left unprocessed for months or even years.
 
DMS -- I have a 100% clear-cut case of abandonment

My own friend's application was rejected on grounds of abandonment, when INS precisely issued a RFE saying, "our records show you had left the country on XX, XXX, 2002. If otherwise, please provide your latest I-94 details."

BTW, this happened in mid-2002 when there was no VISIT system installed to specifically track entry/exit of aliens and happened to my closest buddy who is now working in India after this very unfortunate incident.

So, I at least know of one clear-cut case of abandonment which was accurately tracked by INS.

Also, nowadays, due to VISIT in place, visitors who leave and enter USA have to register their fingerprints. This is an accurate, on-the-spot verification for INS to see who is within the USA and who is outside! So, tracking is only all the more efficient.
 
poongunranar:

When your friend left, did he already has a valid AP in hand or he only had the pending AP? Did he apply for the new AP after his departure? Thanks!
 
I guess I have certainly gone thru scenario #2 - my last AP was valid until this november; I had applied for renewal in July and I traveled to Korea in September using my earlier AP. I have also subsequently used my latest AP (which I was lucky enough to get just before the holidays) and I did not have any issues at POE either of those two times.

I think the important question is whether the person Poongunranar is mentioning had a valid AP when he left because I am aware of a few cases myself where people have run into issues if their AP wasn't valid or expired before their return. I know a person who's outside with an expired H-1 and expired AP an an AP renewal in process. His 485 just got approved and he's stuck outside. Bottomline though, I think if you have a valid AP and you are sure to be back before it expires, I think you should be fine. Sure, they can always decide to hassle you on that later or for that matter, a hundred other things later, simply because it's their prerogative, but I think you would have a solid case in justifying that there was no intent to abandon with this travel.

Having said all of that, the smartest thing to do would be to do what others have already suggested: be optimistic about the next AP renewal timeframe and file the renewal after you return...
 
sd_eagle and ftjquest

In my friend's case, it was for his travel document, albeit, a H1-B renewal within the US. In 2002, it was a 90-day affair, and after 125 days, he had to go to attend his marriage. He thought that the approval will be on the way and would be mailed to him from here in the US. Unfortunately, his departure triggered an abandonment and after that, he couldn't come back. After discussing this issue with his attorneys and my attorneys at work, I came to know that, per INS rules, an abandonment is abandonment especially when the person is absent at the time of adjudication. This was personally attested by him when he contacted the Madras Consulate, where he was grilled seriously for "leaving the US while a travel petition was pending." The Consulate officials clarified, that one cannot disband the petition under any context, until adjudication was over. That is the reason, why INS didn't deem it right to approve it and send it to his home-country for stamping. Rather, it treated it as an abandonment and closed the file.

The new I-131 regulations also clearly does not state about the ramifications by excluding renewals. It does talk clearly about "abandonment." Now, as we have seen quite a few cases having got approved, I clearly cannot whistle in the dark as to whether somebody else will be caught in the loop as my buddy. The only other case with AP with almost similar Damocle's sword is my other friend at VSC. His processing date has gone beyond his receipt date, and yet an eerie silence continues. He is very jittery in Madras and is very anxious, each day. FYI, he should have come back on Dec 20, 2003.
 
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