AP question.

Good Optimistic News !!

Dear Friends:

Whenever I indite certain viewpoints they are strictly based on the rules and statutes that I am aware of, corroborating with other credible hearsay information, as well as first-hand knowledge on certain adverse outcomes. That much said, I do not want many of you to go under panic mode. In fact, I have responded to many of you privately about certain other cases which I know of having gotten their approvals in absentia, even as I await one pending adjudication of my friend in VSC.

Now, I wish to share one private message from a friend in this forum where the case was approved in absentia. For the sake of their privacy, I will remove their identity and other specific details. I have also posted my response to them.

The bottom-line, I want all of you to know is that, exceptions do occur and it is good that they do occur! However, let us be more careful in flippantly taking decisions in future. I also wish all of you not to go under panic mode and be cheerful and optimistic to cross the bridge as it comes:

Dear poongunranar
Please help
I give below the facts regarding renewal of our Advance Parole :
1. My wife went to India on XX Aug 2003 on the original AP that was valid from XX Feb 2003 to XX Feb 2004. I went to India on XX Oct 2003 on the original AP that was valid from XX Feb 2003 to XX Feb 2004. I had filed renewal of our APs on XX Oct 2003 prior to my departure to India. Please note that my wife was not here when I filed for her extension.
2.Both of us returned to USA using our original AP on XX Nov 2003. By then our extension for AP were approved on (XX-12) Nov 2003. Please note that both of us were not in USA when our extensions got approved.
I would like to know if
a) Our new AP is valid for future travel since both of us were out of USA when it was approved? More so for my wife who was out of USA whe her application was filed.
b) Have I put our 485 in jeopardy? Does this amount to intentional abandonment of our 485s? If yes, is there a remedy?
Thanks
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My Response:
Dear XXXXXXXXXX:

Praise be to God, for saving your petitions! To answer your questions,
(1) Your new AP, despite being approved in your absence is certainly valid for future travel. Do not fret on this count. If at all you would have been in deep trouble was when the petitions were approved.

(2) During I-485 adjudication, this may constitute a problem. However, again don't worry, friend. They do not purposefully go after checking your arrival/departure/adjudication dates. There is a possibility for this check, but is not a certainty.

You are safe and hug each other praising God! Don't worry and be happy. Your impasse is gone!
Click to expand...
 
Thank you for sharing this, poongunranar!!

"(1) Your new AP, despite being approved in your absence is certainly valid for future travel. Do not fret on this count. If at all you would have been in deep trouble was when the petitions were approved."

Hopefully so, but after digging into this in the past two days and carefully read posts and laws, I think if they are using the new AP in the future, they may have trouble at POE. Because by check the time at the secondary inspection, it is easy to find out that when the approval happens, they are not in US (I am assuming that is the purpose for secondary inspection).

"(2) During I-485 adjudication, this may constitute a problem. However, again don't worry, friend. They do not purposefully go after checking your arrival/departure/adjudication dates. There is a possibility for this check, but is not a certainty."

I agree with you on this, not only INS do not purposefully check (hopefully), but also your friend can argue here. Although they have a pending AP during the travel time, they never outside of US without a valid AP, which is the rule based to deny the I-485.

Nevertheless, it is a great news indeed and thank you for sharing this with many anxious souls here. And I am also surprised that they get the new approval that fast (applied Oct 2003, approved Nov 2003), is your friend in TSC area? If so, I will hold on for a couple of months.
 
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sd_eagle

Thanks! I know many folks like you would be in jitters and hence chose to share the news with you. More than talking, people are convinced if they see cases in real! "Finding companions in our sufferings either in fact, or in story brings a great consolation to those in anguish" (St. John Chrysostom )

Coming to the other sensitive issues of possible problems at POE and I-485 interview/RFE, yes, there is a possibility but then I honestly feel that it should not be so bad as to ruin your happiness and mar your hopes! Certainly, not so! The point to be learnt in all these postings as that of other gurus is that, try to run away from such risky situations, if possible. Do not take the risk.

Now, at POE they do secondary checks to make sure that the AP document is not a bogus one. Remember, it is a travel document albeit not having most of the other high-tech encoding as a machine-readable visa affixed in the passport.

So my advice is pretty simple: Try to stay clear of these risks. If you get your AP approved in absentia kiss your stars and hold on to it. Possiblility of problems will always arise on one count or the other. Cross the bridge as it comes.
 
Please Help

Hi sd_eagle, poongunranar and others,

I just came across this thread and have been reading it with great concern. My situation is exactly that of sd_eagle's - only I'm already outside the country on the basis of advice(!) from my lawyers. Have a valid AP (until April 1, 2004), applied for a renewal in Oct, 2003, travelled to Australia in Nov, 2003. Renewal has not been approved yet. I was told by my lawyers that it was fine to apply for a renewal and travel outside the country, and even if the case came up for adjudication when I'm overseas, it would get approved without any issues. I was then told I could come back into the country on the current valid AP, pick up the renewed AP, go back to Australia to complete my business trip and re-enter the US in the end of April using the new AP.

Now after reading your posts, it looks like I might have put my entire 485 process in jeopardy. If I travel back to the US by March 31 on the current AP (by the way, is there any rule that stipulates that I have to be back in the US x days before AP expiry?) and hopefully not use the new AP at all, am I still in trouble as far as 485 is concerned?

Poongunranar, I really appreciate your posts and inspite of your urging not to panic, that's exactly what I'm doing, especially because my husband is in the US and I'm here and I would hate to be stuck outside. So I apologize for the long post.

If you could respond to my post soon, I will take it back to my lawyers and see what they think.

Thanks very much,
Dharma.
 
dharmagnana

Friend, kindly do not panic. There isn't any rule that says you should be in the US 'x' days before expiry of AP ,etc. If your date of expiry is tomorrow, you can enter today. So, that answers your question.

Again, gurus can seriously correct me here, because I am making a surmise, after carefully observing a pattern based on the responses I have observed in this forum. That is, at the time of adjudicating the AP, if the officer can verify if the applicant is outside the country,surely the officer issues a RFE for I-94 details (this is precisely what happened in my friend's case in 2002 which subsequently was considered ABANDONED and the guy got stuck in India since then). Now, a few other cases as reported by me in this thread, including my colleague who came after XMas vacation at work, while his AP was pending have made it into the US. So, I think, this issue constitutes grave risk, during the time of AP Adjudication. Of course, INS can question the absence subsequently, but we haven't seen first-hand witnesses reporting that in this forum.

So, to sum-up, the risk is always there when an Immigrant document to travel (H1-B extension AP renewal, H1 filing, H1 transfer, AP Filing) is pending and the applicant is overseas. However, the risk is very high if the person is absent around the time of adjudication.

So, for reasons mentioned above, it would behoove well, if you can come back to the US ASAP (if your work allows, etc.) so that your Oct 2003 renewal will not run into rough weather.

As I said, I will be willing to see a difference of opinion from other gurus.

I always take with a pinch of salt, as to what many attorneys-at-law say here in this country. I have had enough with Civil and Immigration Attorneys, who can only read the statutes without caring to see the implications of their flippant observations. This reminds me very much of the Sophists that Socrates fought during those times. At the same time, I also respect their opinions, if I can see that their opinions are not glib and flippant. This forum has seen, within the past month, a couple, whose GC ran into some serious problems, just because of the misguidance of their attorneys.
 
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Dharma, I spent quite some money moments ago talking to a much respected law firm attorney regard this exactly matter. And what I was told is that once you come back with the current valid AP (first AP), and do not use the new AP (the second AP, assume it was approved then) in the future, then you do not have any problem. Because you were protected by a valid AP (First AP) during the time you were oversea. The safest way after that is to renew another AP (the third AP) and get it before your next trip.

The above is what we know, and now for what we are not sure, that is the second AP. there are too different scenarios. One is that it get approval before you came back, one is that it get approval after you came back. They are all risky at POE, however, the first one is riskier. I guess if we insist of using the second AP, then we are at the mercy of the officer who working at POE on our returning day. And the attorney just does not have clear answer on it.

Now I am very curious to know if there are anyone ever in this group who used the “second AP” (It is approved when he is not in US but then he has a valid AP)enter US…

Please let us know what your attorney say.
 
One exception would be the case where an adjustee travels overseas on an emergency AP with a regular AP pending at the BCIS. Such travel would not constitute abandonment of a pending I-485 or be cause for denial of the pending AP as long as he returns on the valid emergency AP. The only question is how does the BCIS determine (they cannot from his I-94) that he intends to return within the validity period of his e-AP, or do they just wait for him to return before approving his AP?
 
Thanks and an update

Hi sd_eagle, poongunranar and others,

Thanks very very much for your prompt responses. I spoke to my managers here and impressed on them the danger I am facing and have convinced them that I should return back to the US before my current AP expires (well, I'm scheduled to come back 2 days before AP expiry, but from poongunranar's post, it seems ok). That was the best I could do. I can not come back immediately, so I'm going to leave my renewal in the hands of God and trust that everything will work out ok.

sd_eagle, as for what my lawyers are saying, I'll post this snippet of a mail that I got from them:

...Although the intent of applying for permanent residency should be that you plan to live and work in the U.S., immigration understands temporary overseas assignments. As we discussed, you are returning to the U.S. with your current valid advance parole documents prior to the expiration date. You will then be returning to Australia with your new advance parole documents...

This was all I got with regards to AP. Please note that they refrained from answering my question on what would happen if I tried to enter US with an AP that was approved when I overseas. I'm kind of getting the feeling that when they are venturing into the gray areas of law, they usually don't put it in writing - I have always called them asking for answers to unanswered questions and they seem willing to talk to me, but never a written word. So I would take what poongunranar and other experts say here over their words, because it seems like these gurus speak from their practical knowledge of situations like these, involving people like us. Anyways, just my 2c woth...

Once again, I really appreciate your responses and Thank you very much.

Have a Good Day and let's all hang in there...
 
dharmagnana

Friend, many in this forum know that I am overly optimistic, even though the recent postings of mine may seem to be overly cautious, and unfortunately pessimistic as well. However, I stand by whatever I have stated, primarily because the sources of information are very credible and first-hand. Also one has to understand that not many who have got adverse decisions come back to this forum to share the same. :eek:

You are very right, how the attorneys will beat around the bush and will never put it in writing for those gray-areas, lest they be sued later. You go to BCIS site,they will advise that you contact AILA lawyers, and when you contact them, they will say like, "...we think.....INS may not....INS might not...." and when a problem comes, they will play logomachy saying, " we had CLEARLY :confused: stated the risk by implying a MIGHT instead of a more affirmative MAY...Also we only said, 'we think,' and never said anything peremptorily that 'INS will not'" etc. No wonder US, comprising 4% of global population is home to 75% of lawyers world-wide. If it were not so, why the heck your lawyers are not DIRECTLY redressing that gray-area which is the crux of the issue you are trying to redress?

I am sick of civil and immigration attorneys of this country. They milch, but do not have a heart to perceive the depth of human fears, concerns, and anxieties. They all need to have some divine en masse heart surgeries.

Can't AILA take up this issue on a war-footing? Can't they seek a clarification that would result in a memo to the field offices? Even AILA is just an impotent body, trying to feed its own greed, under the premise of representing this poor immigrant group!

This problem has only got exacerbated and we will get to hear more about the +ve/-ve reactions in the imminent future, because of the inordinate delays of TSC (> 200 days). If that comes down to 55 -90 days as before, this issue would silently die away. But until then, we all have to be cautious, using our own discretion as well as seeking the help of our attorneys for advice (for whatever it may be of worth).

I thank almost all the folks who shared their own stories, which were in concordance and/or discordance with my observations. All of it helps all of us. Thanks, once again.
 
What happens in this case

Hi ,

Last time( oct 2002) when we had to go home , My wife had a AP-renewal pending for >90 days. In fact the AP-renwal was applied in June and it said 55-60 days in the receipt , but didn't get before the trip , inspite phone enquiries , Faxes etc. I had a L1-visa ( I am the primary applicant) and so , I returned on my visa and Fedexed the Approved AP to my wife (Nov 1st week) . She used it and came back without any issue.

My question is whether this condition of "being in U.S. during AP renewal " isn't this notification a recent one , like nov 2002 ?

Thanks in advance to all Gurus.
 
narl

The rule was always there. But, bringing it to the fore in the form of an explicit advise is certainly new. The new form with these rules and instructions were released in September 2003.
 
Are you guys saying that it is risky to go abroad with current AP while another AP is pending? Sad if it is true. Since it takes so long to renew AP we may need to apply for renewal after 2 month of current AP. The above reasoning would make the current AP truely valid for 2 months.
 
texas!!!

Sadly, yes. I am also in your boat and if INS enforces this rule seriously, all of us are in dire straits. Either AILA should be taking this issue with the higher-ups or TSC should bring down the time-line to manageable levels like 55-90 days, so that this issue can be put to rest.
 
Travel to India

hello friends,

I need some help/info from all the Guru's.

Currently I'm working on H1B (Approval notice) and my I485 case is pending. I also have AP.
I'm planning to visit India soon, but my H1B visa stamp in passport got expired last year in April.

Is it Ok to re-enter US on AP instead of getting a new H1B visa stamp. My current AP is expiring in april this year and I'll back in US by March this year.

I'm also intending to file for an AP renewal , is it fine to go for it.


Please help !!!!

thanks
 
abhihal:

I had a bad experience about 3 years ago when I tried to get my second H-1B stamp and it was denied.

Mine was a different case, but anyway I would like to suggest you to enter on AP rather than with H-1B. With AP it is completely clear that you are looking to become a permanent resident.

Again, just a suggestion
 
OK -Here is what I found on AP RULE

Gents,

I am complete novice. And Everyone else is a living expert for me. So many have posted so many apprehensions

And Some senior member have expressed their opinions. I dont wish to contradict anyone, since If it is not our attorneys but , we/us need to take care of our interest.

So I post this url for everyone to re iterate on all the concerns. Use it to your descretion and follow it if you believe it. I am taking the risk anyway.

<http://www.murthy.com/UDnewins.html>.

All of you with no AP, travelling back to our beloved birth countries, have a safe trip back to the US.

cheers

krao:)
 
AP Approved

Hello,

I just thought I'd give you a status update on my case - online status shows my Advance Parole has been approved(Feb 24).

Brief recap - am on EAD, applied for AP renewal (VSC) 14 October 2003, left on a business trip to Australia 11/03, planning to come back using first AP end of March (that AP is valid till 3rd April 2004).

This is the first time I'll be using AP to enter the US. Could someone please tell me the documents I need to carry other than

1. Passport
2. Advance Parole papers
3. Copy of 485 application (original with lawyers)
4. Employment letter from my manager
5. Recent paystubs

Thanks very much and Good Luck to All,
Dharma.
 
Poongunranar:

You have a good insight on this issue:
Here is my situation

Husaband has AP / H1 stamping valid until end Jun 2004. He never used EAD yet.

I have EAD - not used.
I have a approved AP until Jan 2005, but lost in mail.
I have H4 stamping valid until end Jun 2004.

I am intending to travel to India and be back 2nd week of Jun 2004, before my H4 expiry (along w/ hubyy who will use his H1 to enter - just 15 days before visa expiry). As per our lawyer, we have meanwhile filed for our new AP, explaining that the present approved one is lost in mail (when I visited the local INS for tracking down the lost AP, they said sorry but to reapply)

My Question is:
Now with valid H4, still having applied for a new AP, can I still take the trip ?. Is it any risky that I have applied for AP and going out ?.

thanks.
 
prospeed

We have had numerous discussions on the topic. But, thanks to a number of friends who publicly and privately shared their own experiences of travelling abroad with a valid H1 or AP with a pending AP renewal at hand, they all made it safely into the US.

Last week, for the first time in my life, I crossed the Canadian border into the United States and was paroled at the International Airport. Validation took more than 15 minutes with every possible background check being run against me. After all was over, two-officers, who helped me get paroled advised me about only one thing: "If you do not get your Green-Card before the expiry of your Parole, please do apply for a renewal WHILE YOU ARE IN THE US and do not depart before doing that." I, for whatever few cents worth it was, asked them as a clarification, "Sirs, can I exit out and enter into the United States with THIS parole at hand and yet having a PENDING AP petition?" They said, "Yes, you can do that. Just make sure, you have a valid AP to re-enter. That is all."

So, from what our friends have shared in this forum, I have reason to believe that you are fine with your valid H1. We have had many share their success stories, precisely echoing your case. God bless.
 
This thread has been going on for a long. I would like to put some facts and practicallity.

Yes, the laws says that adjustee needs to be present when AP is approved.

But it is up to the adjustee to use that AP received in absentia. If it is not used then he/she is not abondaoning 485.

But what someone can do if AP approval takes painfully 8 months. Does that mean one has to sit tight till it is approved. It was ok when AP used to take less than 30 days to approve.

But there are many folks who work overseas and travel frequently becasue of nature of job. Had there not been the delays in 485 and AP processing, this problem could not have aroused. This is again not because of adjustee who is innocent and helpless and just trying to follow the procesdure.

How does the officer at PoE know whether the candidate was absent when AP was approved. Is there a way to know? Do they keep arrival and departure records. And if they do, do they have time to check the details of a guy who travels frequently overseas for his job.

Are there not cases where people could get GC while sitting overseas because GC is fo rjob in future.

What about cases where someone's spouse has visited India and could not come back because of medical complications post pregnancy etc.

There were some threads in the past where people have mailed the approved AP to their spouse and they could come back.

I think the officer at POE is more concerned about the valid AP document. As long as the date is not expired the adjustee is given entry.

I am not here to contradict anyone, challenge law or procedure. Nor do I am trying to take anyone's side. All I am trying to do is to expose the impractical side of AP.
 
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