H4 or AP?

J

jsrini77

Registered Users (C)
My wife is currently in India and she will be returning later this month. She has a valid H-4 stamp and also Advance Parole.

We currently have an RFE on the I-485 application, which I am hopeful my lawyer will respond to in the next few days. Given the current USCIS fiasco, I am not sure what status my wife should enter the U.S. in - AP or H4? Can someone advise?

Specifically, is there a possibility that the GC is approved (I know it is nearly impossible but with USCIS approving 25000 in 2 days who knows...) and the immigration officer at the airport is not aware of it? In other words, if my wife tries to enter on H4 and it turns the AOS was approved a day or so earlier, will there be a problem later on?

thanks in advance for any insights...!

my info:
PD Aug 2005, EB-2 India
I-485 receipt date: Sept 2005
RFE on May 16 2007 for proof of birth and parentage for both me and wife.
 
You should definitely know by the end of this month whether your green card was approved during the alleged end-of-June rush. In your (currently) next-to-impossible scenario that she will be granted a green card in July, she shouldn't face problems returning to the US as a parolee....

If you are worried about the I-485 getting rejected or delayed, and she wants to retain her underlying H status, then it's better for her to enter as H-4, but even that doesn't really matter much because she can still retain her H status even if she uses advanced parole.

See the additional information from the Cronin Memorandum:

5. Should an alien returning to the United States from travel abroad who has a valid 1-512 and a valid H-1 or L-1 nonimmigrant visa be paroled in or readmitted in H-1 or L-1 status?

If an alien has a valid H-1 or L-1 nonimmigrant visa and is eligible for H-1 or L-1 nonimmigrant status and also has a valid Form I-512, he or she may be readmitted into H-1 or L-1 status or be paroled into the United States. It is the alien's prerogative to present either document at inspection. However, if an alien presents both a valid H-1 or L-1 nonimmigrant visa and a valid Form I-512, and the alien is eligible for the H-1 or L-1 nonimmigrant classification, the Service should inform the alien that H-1 and L-1 nonimmigrants no longer need to use advance parole to preserve pending applications for adjustment of status and should admit the alien in H-1 or L-1 nonimmigrant status. The fact that an alien has applied for advance parole and received Form I-512 does not compel him or her to use the advance parole.

If the alien is not admissible as an H-1 or L-1 nonimmigrant, then he or she cannot be readmitted as an H-1 or L-1 nonimmigrant. Instead, such an alien may be paroled into the United States.
 
jsrini77 said:
We currently have an RFE on the I-485 application, which I am hopeful my lawyer will respond to in the next few days. Given the current USCIS fiasco, I am not sure what status my wife should enter the U.S. in - AP or H4? Can someone advise?
Click to expand...

Whichever status she wants. It's probably simpler to enter using the H-4, but if there's a problem AP can be used as a fallback.

In other words, if my wife tries to enter on H4 and it turns the AOS was approved a day or so earlier, will there be a problem later on?
Click to expand...

No. But I wouldn't hold my breath on your case being approved this fiscal year.
 
Thanks RealCanadian and jk0274 for the response.


jk0274 said:
If you are worried about the I-485 getting rejected or delayed, and she wants to retain her underlying H status, then it's better for her to enter as H-4, but even that doesn't really matter much because she can still retain her H status even if she uses advanced parole.
Click to expand...

Could you please point to some source where I can read up on this. Specifically, if one enters on AP how one can revert to H status at a later date.

Thanks!
 
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