Can FOJ be used if applicant cannot return before expiry of AP?

S

sgi

Registered Users (C)
Members,


This question is on behalf of one of my friend who is here in US with her AOS pending for over an year now at VSC (RD June 2002). She is the primary applicant.

Her husband left US, after his mother fell ill and was scheduled to be operated upon sometime in May and was planning to return, July 15th using AP which expires sometime July last week. Both their H1's have expired.

Now, further complications have resulted another surgery being scheduled late in July and they wish to be with her for this.
She knows that her husband has to return before the expiry of AP else there is no means he can enter and later the AOS considered abondeonded, so wants to know

1) Can the husband stay back, while she withdraws his AOS application and then applies Follow-to-join?

2) what other avenues are available to them besides using AP before it's expiry?


She filed AOS herself, so no lawyers involved, which is why she sought my help.
As I am not well versed with follow-to-join issues thought of writing to this forum seeking help. I am sure writing to my lawyer is not going to get proper response, still I will give it a try.

It will be appreciated if any member reading this has any knowledge or links to similar issues post their thoughts/views/suggestions, other options that are available to her.


PS: I am posting this across board for a wider audience, if anybody has objections let me know why!


Thanks
sgi
 
First off, statying out of US with an expired AP does not mean abandonment of I485. BCIS will keep pursuing the I485 unless it is withdrawn.

I have an opinion which is not popular and DOES NOT have the blessings of rajiv .

But it is practical and have worked for many here in the forums.
All your friend need to do is apply for AP (for the derivative or whoever is out of US) now. After the AP approval has been accorded by BCIS, the derivative can enter US using the new AP.
With an previous AP under the belt there is no risk of RFE on AP (unless the application misses the obvious). This way the derivative need not wait for the primary's I485 approval before starting the follow to join.

Only risk is , if I485 is approved before AP approval, then the derivative does not have any other option other than follow to join (Follow to join is CP, but starts after the primary's I485 is approved, see the CP forum for details of how to)
 
My spouse was in india when it was time for us to renew AP. My lawyer told me to wait until she comes back to re-apply.

That set aside, in the AP application form your friend's spouse will have to mention that he is outside US and applying for AP if he is applying from outside US. I don't know whether this will lead to any complication. I don't know whether this is normal and anything not normal is not good.

What about this idea (don't know whether it is dumb - atleast I can't find any fault with it) - Come back for a day to US, apply for AP and return. That way every thing is same as normal.
 
jamborees thanks for your response.

When one applies for AP, the applicant cannot leave the US shores until the physical documentation is received, even an approval is not enough, unless one is using some other visa to travel. I have read this in many immigration site.

--- sgi
 
But nobody checks for it when u r leaving the US!

So, u mean to say, they will find out somehow that the person who applied for the AP is not in the country and reject the application?

Thank you for letting me know. This is new information for me. Can somebody confirm this?

Thanks
 
The language is "should, prior to departure, obtain Advance Parole " why ? "in order to re-enter the United States after travel abroad"

However see this link
http://www.immigration.gov/graphics/publicaffairs/advisories/advisory.htm

To answer your first question, yes the spouse's I485 can be withdrawn and after I485 approval for primary has been accorded by BCIS, the spouse can apply for follow to join - it will take another 8-15 months from primary's I485 approval. After primary's 485 is approved or spouse's 485 is withdrawn, AP will not be valid.
 
You must log in or register to reply here.
Top