H1b & 485

Z

zephyr74

Registered Users (C)
Situation:
I'm planning on going on vacation (overseas) in 2 weeks time (booked ages ago) and I had expected that my 7th yr H1B visa extension (RD 10/30/03) to have been approved by now. My existing H1B expired 1/1/04. It is too late to cancel my vacation plans - no refund or transfer policy, so I still want to leave and have my H1 visa approval & I-94 sent to me overseas and then get it validated over there at the US Embassy. Did not apply for AP but I was told I could use my H1B. Now I'm going to apply for it anyway, but too late for my trip.

Question:
Leaving without validation in hand will this affect my pending 485 case. Or should I not take any chances.

Any advice would be much appreciated!!
 
Since your H-1B approval of extension has not come through yet you are now in AOS. If you go overseas it would be construed as an abandonment of your I-485 application.
Do not take any chances and travel if you do not have your AP or H-1B extension on hand.
 
actually you can search the forum for messages on 7th year extention because as far as you have applied for it, you shd be in status of H1b and not AOS. so you shd be able to enter with h1b. right???
 
Originally posted by robocop104
actually you can search the forum for messages on 7th year extention because as far as you have applied for it, you shd be in status of H1b and not AOS. so you shd be able to enter with h1b. right???
Click to expand...

Since the H-1B extension was timely filed, he has not switched to adjustee status. Even if he did, leaving without AP will not in itself abandon the AOS application, but he does need an H to get back.

If you leave the US, you will NOT be able to return until the H-1B extension is approved.
 
yup. so you shd be able to enter on H1b, ONCE it is approved and it is mailed to you.

but AOS will be not affected.
 
Zephyr,

There's a couple things in your post that require attention:

1. Do not travel abroad while AP application is pending. To do so may cause USCIS to construe your AOS petition as being abandoned. If you have filed for your AP, you need to wait for it to get approved. If you must travel at this time and are unlikely to get emergency AP, do not file the I-765.
2. Are you sure that your H1 extension will be approved in the time you're out of the country? This is a facetious question, since no one can predict the workings of the exalted USCIS. Be prepared for an extended stay outside the US until the I-129 is approved.
3. Find out from the US embassy/consulate convenient to where you are travelling if they accept visa applications from applicants not living in their consular district. If they do not, then you cannot apply for your H1 stamp there.

Hope this helps, and all the best.

K
 
Originally posted by PhillyKP
may cause USCIS to construe your AOS petition as being abandoned. If you have filed for your AP, you need to wait for it to get approved.
Click to expand...

I travelled outside the US with an adjustment, EAD and AP pending and re-entered even before the receipt was generated with no issues whatsoever.

Be prepared for an extended stay outside the US until the I-129 is approved.
Click to expand...

This would be my big worry. What happens if an RFE gets generated?
 
In point 1, I meant the I131(AP), not the I765 (EAD).

RealCanadian, about your first point, I travelled outside the US with an adjustment, EAD and AP pending and re-entered even before the receipt was generated with no issues whatsoever.

form I131, page 3 states that application will be considered abandoned if the individual departs from the US before the AP is issued. What is ambiguous is the word 'application'; is it the AP application, or the 485?

As to your personal experience, there is a huge difference between what is supposed to happen, and reality. Chances are if you have a valid H1 or other visa that lets you enter the country, the immigration official at your POE is not going to ask you any additional questions and you get by; the key there is to not volunteer any information that you are not specifically asked for. Also, in your specific case, I'm sure that a lawyer could argue that until the receipt is generated, you technically have not yet 'applied' for the benefit in question (hearsay? :D)

K
 
Originally posted by PhillyKP
form I131, page 3 states that application will be considered abandoned if the individual departs from the US before the AP is issued. What is ambiguous is the word 'application'; is it the AP application, or the 485?
Click to expand...

Keep in mind that the forms were written back in the old days before dual intent and the use of H/L instead of AP. In those days, non-immigrant status meant exactly that. Once you filed your I-140 or I-485, you had no non-immigrant status and could only re-enter the US using AP.

The act of departing did not kill your I-485, it was your inability to re-enter that would kill the thing.

Now, we have the ability to re-enter using an H or L (and K or V for some family cases) which are dual-intent. You can then return using those visas or petitions, so AP becomes somewhat unnecessary if you are maintaining a valid non-immigrant status that allows dual-intent.

That's how my wife and I were able to re-enter the US after our I-485 had been filed without AP. I had an approved H-1 petition, and my wife requested H-4 status when we entered.
 
Thank you for all your responses.


Find out from the US embassy/consulate convenient to where you are travelling if they accept visa applications from applicants not living in their consular district. If they do not, then you cannot apply for your H1 stamp there.
Click to expand...
----WILL DO!!

Do not travel abroad while AP application is pending. To do so may cause USCIS to construe your AOS petition as being abandoned. If you have filed for your AP, you need to wait for it to get approved. If you must travel at this time and are unlikely to get emergency AP, do not file the I-765.
Click to expand...
---I have not applied for AP yet...actually compiling documents to send to lawyer.

Are you sure that your H1 extension will be approved in the time you're out of the country? This is a facetious question, since no one can predict the workings of the exalted USCIS. Be prepared for an extended stay outside the US until the I-129 is approved.
Click to expand...
---RD is 10/30/03. VCS indicates as of 2/6/03 that it is processing for I-129 9/10/03.
 
Originally posted by TheRealCanadian

Now, we have the ability to re-enter using an H or L (and K or V for some family cases) which are dual-intent. You can then return using those visas or petitions, so AP becomes somewhat unnecessary if you are maintaining a valid non-immigrant status that allows dual-intent.

That's how my wife and I were able to re-enter the US after our I-485 had been filed without AP. I had an approved H-1 petition, and my wife requested H-4 status when we entered.
Click to expand...

I have no argument with this at all. If you do have a dual intent visa, you are allowed to enter into the country after having declared your intention to immigrate (starting with filing labor). If you do have such a valid visa, you definitely do not need AP

The point that I was talking about was whether travelling abroad while an AP application was pending (whether or not it was needed, based on the applicant possessing a valid dual intent visa), would cause the 485 to be abandoned; the words in I131 form seem ambiguous to me; I was wondering if anyone could clarify.

Zephyr, given that USCIS is currently processing 09/10, your ND/RD is 10/30, and you're vacation is coming up in 2 weeks, I'm sorry to say this dude, but if I were in your situation, I would probably eat the cost of the trip and not leave the country. That's not to say that this is what you should do, but it's what I would do :D

Cheers,

K
 
You must log in or register to reply here.
Top