AP question.

S

sd_eagle

Registered Users (C)
I heard the following rules(not sure if it is true):
"person needs to be physically present in USA when the AP is approved in order to use that AP for future use."

Guys, how about this scenario?

I have a valid AP, I am planning travel to oversea and before I leave, I applied for the AP renewal.

During the time I am outside of US, the new AP gets approved.

Then I come back to US with the current valid AP and get the new AP.

My question is can I use the new AP in the future or not?
 
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I guess you are taking chances ONLY if the current AP (or the AP that you used to go out of US), got expired when you come back. Since you are not depending on the renewal AP to come back, i don't think you will have any probelms at the port of entry. As long as you carry a copy of your renewal AP receipt, I485 receipt copy and valid EAD, i think you are fine.

This is only my opinion , pl make sure to read other threads in this forum related to AP for travel.
 
Oops ! I missed one more thing.......

Surely you can use the renewed AP for future travel.
 
Rejoinder to ManiG

ManiG and SD_EAGLE:

I respectfully wish to differ from ManiG's postulation. Let us go from the basics:
  1. Why am I applying an AP (or renewing an AP)?
    Answer: I am applyinig for an AP, so that on leaving the United States, I can enter again without any problem.
  2. Can an AP technically be approved in absentia?
    Answer: Mistakes do happen, and if any of you personally know of a case where an AP petition was approved in absentia, that should be treated as an exception arising more out of error, than as a norm arising out of jurisprudence. As per the rules, if the AP is filed for the reason as enumerated in (1), then such a petition can be rejected, if the person is not physically present in the USA. However, an AP can also be filed on behalf of a person who is in a foreign country and needs to enter the US, subject to other immigration formalities supporting the sustenance of such an application. Therefore, if you file an AP (or renewal) for reason (1) and if you are absent, your application in all probability will be rejected. As per Immigration laws, a beneficiary for AP for reason(1) is expected physically to be within the United States, until adjudication of the same. Of course, if the renewal fails, you can come back to the US with your old AP. However, whether INS will reject the underlying I-485 as well, citing abandonment of petition clause is certainly a moot point that I cannot speculate. Technically, INS can certainly do so, because it need not make assumptions that beneficiary will travel into the US, based on some old AP, etc. In the eyes of Immigration Law, it sees the beneficiary to have applied for AP and has left the country -- a perfect case of abandonment.
    [/list=1]

    I will stand corrected, if other gurus have a difference of opinion. SD_EAGLE, please exercise caution.
 
poongunranar ! Thanks for the Info, it was very useful. I was about to make a BIG mistake by taking a overseas assignment for 4 months, with my AP expiring in 2 months.

Thanks again !
 
Thank you very much for the response.

Unlike ManiG, I can not refuse the assignment. I will talk to an immigration lawyer regard this topic to see what I can do.

I realy think INS should not reject the underlying I-485 just because the beneficiary with a valid AP is not in US when the renewal case(AP) is being reviewed, particulatly in nowdays that an AP need more than 7 months to get approval.

If it is true, then AP hardly can be used anymore, because we all have to renew AP shortly after the approval, and we all can not leave US during the time.
 
sd_eagle

Originally posted by sd_eagle
I realy think INS should not reject the underlying I-485 just because the beneficiary with a valid AP is not in US when the renewal case(AP) is being reviewed, particulatly in nowdays that an AP need more than 7 months to get approval.
Click to expand...
Friend, I am talking about how INS will go by the book, without getting into the practical niceties. Whether such a rule will cause you practical difficulty is something that INS is not supposed to be bothered at all. Even for an immediate death of a petitioner's relative, it is its prerogative to either approve an emergency AP or not. In short INS is NOT ultra vires on issues such as these.

The point YOU have to clearly see is that INS need not have to delve into your history to see if you have currently left the country with another AP or not. IT has to act ad rem, which means, "thing at hand." And that is a fresh AP petition. And if its internal records show that you are out of the country, then it is a perfect case of abandonment which will automatically make your AP petition tenuous to entertain. When such an adverse action is taken, then the raison detre of such an AP petition, viz., the I-485 should also be revoked under the abandonment clause. I am not even whistling under the dark, but this is a crystal clear case that would qualify for abandonment.

If you are that particular about your travel, you should travel on your current AP and apply for renewal, only if your heart, feet, and soul is physically within the 50 contiguous states of the United States of America.

There are certain things worth taking risk for. For others, well......not really. So, kindly use your discretion and do not just go by whatever your Attorneys-at-law have to say. They can only advise, we have to act. Good luck.
 
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First, Poongunranar, I apreciate your input on this, thanks again.

"If you are that particular about your travel, you should travel on your current AP and apply for renewal, only if your heart, feet, and soul is physically within the 50 contiguous states of the United States of America."

My question may sounds silly, but I just want to be certain that I understand you correctly. I am now in US and I already applied for AP renewal. So my heart and feet are here(not sure about soul though,:)).

And I still have a valid AP now which will expired in August. Do you mean that I still can not leave in US unless my renewal AP is approvaled? Otherwise, my I-485 will be denied.
 
sd_eagle
I have asked a similar question to my lawyer in the past. When I picked up my AP from her I commented that since it is taking 7 months for AP to be approved, I should go ahead and apply for one now so I won't have to wait when this one expires, she said that I should wait till after my planned trip and I need to be in the country when I apply for the new AP. I accepted her opinion and did not ask her any questions. I will call her tomorrow and ger her opinion on the situation you mentioned.
 
sd_eagle and harvydonald

SD_EAGLE: Sorry friend, for not having made myself clear. YES! I meant that when you had applied for your AP and are awaiting approval, you have to be physically staying within the US until adjudication. I thought you had a choice of applying for the renewal after your trip. However, from what you have redacted, it seems like you have already applied for a renewal and I am afraid that you cannot leave now. You shouldn't. As I said, of course a number of errors in favor of the applicant has happened before. In your case, who knows? As I have mentioned elsewhere, one of my friends lost his process specifically because of abandonment and that is the reason why I passionately dissuade people from taking this risk. Also, as I had posted elsewhere, now I am aware of one of my other friend in VSC, who is held in India, counting his good luck for an AP approval in absentia so that his friends would mail it to him in India, so that he can come back. I will let you folks know if he was lucky enough to get it approved in absentia or not. Again, even if he is approved, you should take that to be an exception as it is clearly not the norm. The officer would not have cared to see if the applicant is within the US, while approving it. For some reason, if he is able to verify that, he is surely not going to approve it as it is a violation of the rules!!! So, ask yourself if it is worth taking the risk. As per his estimates, he should have got approved around 20 December 2003, but is still awaiting approval. And whatever I said is vindicated by harvydonald's experience.

harvydonald: Seeing is better than hearing. You have basically vindicated my own assertion in this regard. Thanks friend, for sharing your information.
 
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poongunranar


I might need your insights on this matter.

Here is the situation.

I am working with H1B right now and filed my AP with 485 back in November 2002. I haven'e received my approval for AP yet.

Now i need to make a trip back to my home country due to an emergency. Since I don't have my AP, I will have to apply a H1B visa during my staying in my home country in order to get back.

Chance is that I might get rejected for my H1B since I have applied for 485, which is an immigration petition.

My question is, if I am willing to take the risk (going back home and apply for a H1b) and got my h1b rejected, can I use my approved AP (assuming it'll approve in no time and I can have my wife mail it to me overseas), to come back USA?

Thanks in advance.
 
I spoke to my lawyer this morning. She confirmed the same thing. She also said that even if they approve an AP while you are out of the country, you might get into trouble in the future if they determine that you abandoned your 485 by leaving the country while your AP was pending.
 
tsc-jjs

Friend, the bitter-pill answer to your question is : If you proceed with your trip overseas, you are under grave risk.

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.

There is a silver-lining to your case, though. That is, since this is the first time you have applied for AP and I think you have a typo in 2002, where in essence you had meant to say that you filed in November 2003, you can expect a speedy approval of AP. From the pattern I could see here in the forum, the first-time filers of AP are getting it within 2 months time. So hang in on there.

Personally, I feel you will be risking too much by leaving overseas right now. As I said, I already personally know of a case in 2002(of my closest friend) and now am closely watching another friend of mine from VSC, with fingers crossed, as he is now awaiting his AP approval in India, postponing flight after flight.
 
tsc-jjs:

I may suggest that given that yours is an emergency you should try to get an Emergency AP before leaving USA; if this is granted then you can have peace of mind.

Just my sugestion!
 
“ I may suggest that given that yours is an emergency you should try to get an Emergency AP before leaving USA; if this is granted then you can have peace of mind.”

If I understand correctly from this thread (the person can not leave as long as he has an AP pending, period), then tsc-jjs can not leave by the emergency AP, because just like me , he still has another pending AP which will cause trouble.

Thanks again everyone!
 
Thou shalt not leave the USA...

if thou hast an AP pending with the INS, even if thou hast other valid APs, H1-Bs, etc.

Yes! That is a valid understanding.
 
poongunranar


It's NOT a typo. I file my AP and 485 at the same time back to november 2002 and haven'e received anything!!!

Correct me if my understanding is wrong.

Your post implys that even if my AP approved during my staying overseas, I can NOT use it reentry into USA, simply because I am not present here (US) physically during the adjudication of my AP case.
 
Originally posted by tsc-jjs
poongunranar


It's NOT a typo. I file my AP and 485 at the same time back to november 2002 and haven'e received anything!!!

Correct me if my understanding is wrong.

Your post implys that even if my AP approved during my staying overseas, I can NOT use it reentry into USA, simply because I am not present here (US) physically during the adjudication of my AP case.
Click to expand...

Your understanding is correct, you may be able to get away with entering into the USA. But your 485 may get rejected in the future on the grounds that you abandoned the process.
 
tsc-jjs

Whatever I had to say, harvydonald has clearly stated that. I would just like to add an emphasis to his assertion -- i.e., yeah, you may not have any problem entering into the US by having your friends/spouse mail the approved AP overseas. However, during I-485, that MAY become one of the Achilles' heel in deciding the fate of your application. So, it is not like, "yeah we will reject your I-485, because 30 years ago, you got your AP approved when you were overseas." At the same time, if they were to find that out in their systems, it may work against you.

Also, please call the 1-800 number and adamantly ask for an Immigration Officer with whom you should take up this inordinate delay of 13-14 months for AP approval. Try to rope in Senator/Congressperson's aid as well to see through it. You have to build up the pressure.
 
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