Currently Outside US -AOS approved - AP and H1 expired

S

sunilgandhi

Registered Users (C)
I am working from my company's India branch since august 2003. My 7th year H1 extension expired in Feb 04(using EAD from feb till now) and Advance parole expired in April 04. My laywer informed me that my I-485 was approved yesterday. My laywer suggests to apply for a new H1B since I would be out of the country for more than a year in august.

1) Will I be able to continue on current I-485 with new H1.?
2) Will I have problems getting my new H1 because of approved AOS.?
3) Will I need to declare that my I-485 has been approved when I go for the H1B visa interview to the India consulate..?
4) My address in US has changed. The I-485 approval notice may have been returned. Will this cause a problem.
5) Do I need a visa to be on payroll for US company. I am not physically present in US.
6) can I do GC stamping in India?

Any help is apreciated
 
You are in a very very tricky and unique situation here. If you had a valid AP or H1b, you could have simply returned to US and got your LPR status stamped. Since you have no valid travel document to US (AP or H1 visa) no airline will allow you to board a plane to US.

A new H1b requires your employer to file the required paperwork with USCIS. If USCIS finds out that you already have an approved I-485, they might cancel that 485 approval before granting H1 approval or allow you to pick one over the other. Usually USCIS does not allow 2 completely different valid approvals to exist at the same time.

I am not sure how your attorney advised you to do what you did i.e. remaining out of US without any valid travel documents to return to US.

The absolute worst case I think will happen is this: You get a new H1b approval, your 485 gets cancelled, you get a new H1 visa and re-enter US. Once you do so, you re-apply for a new 485 and start again.
 
I am not sure if my suggestion is even an option or not.
Your 485 is approved and that is good news. Since when you left US you had a valid AP, your 485 wasn't considered abondoned and that is why it got approved.
Now as to the question of going back to US, I am not sure how viable the H1 option is. Then again, I am not nearly as educated as your lawyer so he might know what he is talking about.

Look into the following alternative:
You 485 is approved, but getting your passport stamped is not required, it is just a way people can travel to and from US untill their plastic card arrives.

If you are not asked to come in for an interview (which you weren't since your 485 is already approved), then just wait till the plastic card is mailled to you in US, and then have someone here in US mail that plastic card to you and you are back in business.

This way you won't yourself tell USCIS that you are out of US. Filling H1 may result in your H1 getting denied, but they will not cancell your 485 because you filled your H1.

Once again, I am not even sure if this is an option, look into it, do some research. Plastic cards take around 6+ months to come, if you are lucky you will get it faster.

Goodluck!
 
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guju said:
I am not sure if my suggestion is even an option or not.
Your 485 is approved and that is good news. Since when you left US you had a valid AP, your 485 wasn't considered abondoned and that is why it got approved.
Now as to the question of going back to US, I am not sure how viable the H1 option is. Then again, I am not nearly as educated as your lawyer so he might know what he is talking about.

Look into the following alternative:
You 485 is approved, but getting your passport stamped is not required, it is just a way people can travel to and from US untill their plastic card arrives.

If you are not asked to come in for an interview (which you weren't since your 485 is already approved), then just wait till the plastic card is mailled to you in US, and then have someone here in US mail that plastic card to you and you are back in business.

This way you won't yourself tell USCIS that you are out of US. Filling H1 may result in your H1 getting denied, but they will not cancell your 485 because you filled your H1.

Once again, I am not even sure if this is an option, look into it, do some research. Plastic cards take around 6+ months to come, if you are lucky you will get it faster.

Goodluck!
Click to expand...

In order for USCIS to order your plastic card they require your fingerprint for including it in your card. Without this fingerprinting the cards is not ordered.
 
sunilgandhi said:
I am working from my company's India branch since august 2003. My 7th year H1 extension expired in Feb 04(using EAD from feb till now) and Advance parole expired in April 04. My laywer informed me that my I-485 was approved yesterday. My laywer suggests to apply for a new H1B since I would be out of the country for more than a year in august.

1) Will I be able to continue on current I-485 with new H1.?
2) Will I have problems getting my new H1 because of approved AOS.?
3) Will I need to declare that my I-485 has been approved when I go for the H1B visa interview to the India consulate..?
4) My address in US has changed. The I-485 approval notice may have been returned. Will this cause a problem.
5) Do I need a visa to be on payroll for US company. I am not physically present in US.
6) can I do GC stamping in India?

Any help is apreciated
Click to expand...

This is very tough situation. Try talking to some attorney. You did tell what you want to do? Do you want come immediately now? Or want to continue in India?

Other way is to contact the consulate and inform them the situation. I am not sue but they may issue you transportation letter.
 
nkm-oct23,
I am not sure what the procedure is after 485 is approved till getting the plastic card.
So once the 485 is approved, does USCIS send out a notice to us asking us to go and get our finger prints taken for the plastic card? How do they get the fingerprints from us? Don't they just use the finger prints they take for FBI check?
 
guju said:
nkm-oct23,
I am not sure what the procedure is after 485 is approved till getting the plastic card.
So once the 485 is approved, does USCIS send out a notice to us asking us to go and get our finger prints taken for the plastic card? How do they get the fingerprints from us? Don't they just use the finger prints they take for FBI check?
Click to expand...

You are required to show up for recording your fingerprints and signature on a form called I-89. The data on this form is then used to make your permanent resident card. USCIS cannot use the fingerprints taken for FBI check. Without your signature anf fingerprints on this form, your cards are not made and you officially do not become a permanent resident until that happens.
 
I think there is a provision to transfer your files to a Consulate/POE. Of course your attorney can talk about that better. Form Name is I-824.

GoodLuck.
 
Just saw the following on Murthy's. Thought it might be of help.

#################################################
Chat User : My sister is in India without advance parole but has a 10-year multiple entry visitor’s visa. Her I-485 is now approved. Can she enter the USA?

Attorney Murthy : Generally, a person cannot enter on the tourist visa after filing the AOS, since the filing of the I-485 generally does not allow a person to maintain both an immigrant intention and a nonimmigrant intention. Only those on H1B, L-1, or their dependents are allowed under law to maintain dual intent of the nonimmigrant and immigrant options. If such a person enters the U.S. on the B-2 visa stamp, then there is a risk that the CBP Inspector (if the person is aware of the filing of the I-485) can cancel the I-485 filing. By law, an I-485 application is deemed abandoned when a person departs the U.S. without taking the Advance Parole before leaving the U.S. The safer course is to now try and enter the U.S. using CP, though it takes a long time. H1B or H-4 is now no longer an option for such a person since the I-485 has been approved. There is a risk either way, except with CP but as mentioned above, that could take a long time.
 
New H1 is approved - Visa intv. in 2 wks - Plan to travel next month

Hi All,

Thanks for all the feedback. This is my current status -
1) I applied for a fresh H1 through my employers. It was approved a couple of weeks back ( did premium processing)
2) Will be going for my visa interview to Mumbai consulate in 2 weeks
3) Planning to travel to US in October.

I have some more questions -
1) I do not want to disclose my GC application info at the time of visa interview so I will be mentioning that I was working at our Indian branch from the time that my H1 visa expired. Does a person have to be employed in the US during the entire duration of I-485 processing. I do have approved EAD and am on US company's payroll but since I am not physically in the US, I do not need to use EAD and do not need to have a valid work visa for US right ?

2) Should I enter US through Canada. I do notwant my GC application to show up at the port of entry. Last year when I drove across from Canada to US from Niagra falls, no one checked my passport. It was a breeze. Has anyone travelled from Canada recently. I hear that they do check all details now.
 
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Hi,

Ditto...ditto.

We are in the same position as U. Came back to India in Feb and got to know yesterday that I 485 has been approved. Our VISA and AP has expired.


Is H1 the only option?

Please share ur experience.

Good luck. Hope U do get the stampin done after all this struggle.
 
Hi..you have an option to file for an H1 extension or apply for advance parole if you still have a valid I-94. If none of the above apply, then the best route to go if file for a new H1. Chances are that you will be asked lesser questions with H1 versus advance parole. Advance parole is meant to applied for when present in the U.S. So there is some illegality involved when applying from outside.
 
Hi SunilGandhi,

Thanx for the info. Please keep us posted on Ur VISA and subsequent approvals.

Good luck.
 
Updates?

Hi...

whats the update on ur front? Are U in the U.S. now? What happened to Ur 485??

Please keep us posted, it will really help us a lot.

Thanks.
 
GC stamping done

Hi All,

We had no problems at our point of entry. We entered through Washington D.C. The guy asked for my H1b petition, stamped my passport with no questions asked.

I visited the USCIS office in Boston today for my GC stamping. My appointment was for 7:00am. The officer asked for all APs and EADs. All I submitted was my most recent H1b approval notice. He put a cross across my H1b visa in my passport. He asked me for proof of my new address. ( I had changed my CA address recently) He also asked me why I was having my passport stamped in Boston when my petition was filed in CA. I told him that I was in Boston on deputation through work. He then stamped my passport with a temporary residency stamp valid for one year. He said the green card would follow shortly in the mail.

FYI, our situation is perfectly legal. Our lawyer has confirmed that we can continue our AOS on our new H1. Please see H1/AOS regulation Title 8, Aliens & Nationality, Section 245.2(a)(4)(C).

The process was very smooth and took only 20 minutes.

Hope this helps! Thanks for all ur assistance.

Sunil Gandhi
 
Congratulations....so there is light at the end of the tunnel!!

I feel highly positive after reading Ur mail. Hope the same works for us.

Thanks for the reply and Yes 3 cheers for Ur GC.

:D
 
Sunil,

Did you appeared for FP here before you leave US, while 485 was pending?

I have my 140 approved, 485 pending more than 180 days and not hear anything about FP call and planning to return to India for a while with new/same job. I have valid AP but will expire by mid of next year. So, exploring all possibilities of keeping my process alive incase needed. I will appreciate your feedback.

Thanks,
 
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