Apply for AP while on 245i

S

swamy

New Member
Hi,

I have valid H1B. My wife\'s H4 expired. We did not extend her H4 b\'cause she got her H1B from another company. But she did not work for that company.

We filed for I485. For my wife, lawyer used 245 i category.
I aready got my AP..Can I apply for AP for her too??

My lawyer says AP should not be applied since we filed thru 245 i category for her. But we need to visit India.

Any idea? Thanks.
 
I think your lawyer is right...

there is a law that says that you will be subject to 3/10 year bar if you applied for 485 under 245(i) and travelled out of the country. But just ask the lawyer if she could get a fresh H4 with your h1 if she goes out and then uses the H1 to renter. BTW at the back of your advance parole approval there is a note that explains this bar condition
 
Don\'t do it!

My understanding is that, because your wife was out of status for a certain period of time, she could be denied entry into the US on return. It\'s definitely wise NOT to travel until the greencard is approved.
 
hi

If one leaves the country when AOS pending under 245(i), even though AP is approved or any other Visa is issued, GC will be most likely denied(But one can enter the country using AP or the Visa) .

My wife completed 6 years of H1 and my PD was not current then. We applied for F1 and while that was pending we were able to file AOS. After a few months INS issued RFE for F1. My attorney at that point of time said since AOS is filed no need of replying REF for F1. Couple of months later F1 was denied as RFE was not responded. In the mean time we got AP & EAD.

When we took a second opinion , other attorney said INS may(50% probability) treat the 5 months my wife went school as out of status and even though she can reenter the country using AP,if travels outside,her AOS may be denied reasoning that she abandoned the AOS application(because of 245(i)) and can not be appealed.

We did not want to take a chance and finally got approved last week and apparantly INS did not consider the 5 months as out of status.
 
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