how long can someone stay outside the US while AOS is pending

[Kumarash]

Dear all,
I have a offer of job from a US employer to work in a foreign country which may be a renewable contract for 1 year. I want to find out while my AOS is pending how long can I stay outside US? This is assuming I have switched employer and my I140 is approved and I am pass 180 days of my I485 (on a GC petition from my sponsoring emplyer).

Also, does my new employer needs to take over the AOS process since I will switch employer?

Thanks a lot for your input!

 

[pralay]

I want to find out while my AOS is pending how long can I stay outside US?

There no timelimit for staying outside in AOS stage. However, you have to keep following criteria in mind:

1. Your employer must follow the LC - in terms of salary (in USA), job spec (in USA) etc.
2. Your employer must be willing to employ you and keep in USA (permanently). In that way, business trip to foreign country for short term/long term is OK as long as your are considered an employee of US division of your employer.
3. Your are filing US tax return regularly (in AOS stage).

Also, does my new employer needs to take over the AOS process since I will switch employer?

AOS is your petition. Employee never takes over AOS process. Only thing your employer can do is providing supporting documents if needed (like EVL, company tax returns etc).

 

[Kumarash]

Will I need AP to travel outside, can I apply for its renewal without being in US?

hi Pralay, thanks very much for your input.

I will be on US terms while working on a foreign soil. My salary however will be paid locally so I am not sure how my taxes would work out with the US. Also I will most likey be out for 10-12 months however I will maintain my residence (i.e. house) in US (although I may rent it out for a year).

If I step out for that much time, I would probabely need AP for travelling, but keeping in mind the renewal takes 2-3 months, Do I have to get back to the US 2-3 months prior to its expiry or I can just apply while being abroad? If its not possible I may have to look for a contract for 9 or less months???

Many thanks in advance!!

 

[TheRealCanadian]

1. Your employer must follow the LC - in terms of salary (in USA), job spec (in USA) etc.

There is no requirement that the employer follow the LC terms at any point before the GC is approved, especially not if the alien is employed outside the United States.

2. Your employer must be willing to employ you and keep in USA (permanently). In that way, business trip to foreign country for short term/long term is OK as long as your are considered an employee of US division of your employer.

This is key. USCIS may legitimately question intent to hire permanently in the US if the alien is employed abroad.

3. Your are filing US tax return regularly (in AOS stage).

Unless you have US income or meet the SPT, there is no need for this.

 

[Kumarash]

Thank you very much for your input

Thank you very much for your input

 

[pralay]

There is no requirement that the employer follow the LC terms at any point before the GC is approved, especially not if the alien is employed outside the United States.

Well, when you use AC21 you got to have same job profile. Though GC is for future employment, but your current job + salary a good indication your "future" salary + job. I haven't seen any employer who give conditional offer like "before GC approval we will pay you $40K and keep you as programmer and after GC approval we will pay you $150K and make you manager". That's the very reason in interview/RFE USCIS never ask for "future salary", "future job profile". But rather they ask for 3 recent pay stubs, last tax return and EVL (with current position).

And, AOS becomes irrelevent if you employed outside USA. Being employed outside USA is an one issue and being employed in USA and going to business trip for long term is a different issue.

Unless you have US income or meet the SPT, there is no need for this.

If you employed in USA (the very reason you filed for AOS), you got to file US tax return.

 

[TheRealCanadian]

Though GC is for future employment, but your current job + salary a good indication your "future" salary + job.

Absolutely, but there's no requirement. USCIS may legitimately question intent if the alien is in the US in the same labor market as covered by the LC working for the company, but if they're abroad then everything goes out the window.

If you employed in USA (the very reason you filed for AOS), you got to file US tax return.

No, you need to file a US tax return if you have either US source income or you meet IRS' requirements for US tax residency. The requirements for filing taxes have nothing to do with what you do with USCIS. If the original poster is employed abroad, living abroad and has no US-source income, then there is no requirement to file a tax return.

 

[pralay]

hi Pralay, thanks very much for your input.

I will be on US terms while working on a foreign soil. My salary however will be paid locally so I am not sure how my taxes would work out with the US. Also I will most likey be out for 10-12 months however I will maintain my residence (i.e. house) in US (although I may rent it out for a year).

If I step out for that much time, I would probabely need AP for travelling, but keeping in mind the renewal takes 2-3 months, Do I have to get back to the US 2-3 months prior to its expiry or I can just apply while being abroad? If its not possible I may have to look for a contract for 9 or less months???

Many thanks in advance!!

That's tricky issue. You need to talk to your lawyer.

You need to get back to USA before your current AP expires.
You cannot apply AP abroad because when you apply you need to provide photocopies of your I-94 (that you currently have with you). When you are abroad, there is no I-94 with you (it retuned back to USCIS).

What you can do,
1. Come back to USA 2-3 months before your current AP expires.
2. Apply for new AP in USA and go aborad with your old AP.
3. Come back to USA before old AP expires (probably your new AP will be approved meanwhile).
4. Go back abroad with your new AP.

Basically you have to travel twice.

 

[pralay]

No, you need to file a US tax return if you have either US source income or you meet IRS' requirements for US tax residency. The requirements for filing taxes have nothing to do with what you do with USCIS. If the original poster is employed abroad, living abroad and has no US-source income, then there is no requirement to file a tax return.

I guess we are not talking about "employed abroad" issue, bacause that makes AOS invalid. What I understood that he is employed by an "US company" and going abroad for a long term contract (foreign assignment). However, when you go abroad for long term assignments, to prove that your "base location of employment" is still USA, you/your your employer needs to show some sort of documents to prove your intent or employer's intent. Tax return, offer letter in USA (that specifies that your "base location") are just some of them.

 

[Participant]

. Though GC is for future employment, but your current job + salary a good indication your "future" salary + job.
---**True for all practical purposes but not a disqualifier if not meeting.(See last Page/paras of yates Ac21 memo).**
I haven't seen any employer who give conditional offer like... "san bernardino". That's the very reason in interview/RFE USCIS never ask for "future salary", "future job profile". But rather they ask for 3 recent pay stubs, last tax return and EVL (with current position).
---**Mostly true in most of the cases but there are few known cases where
the present job description varied slightly and salary less than< K than 'Future GC',though employer's intention may not be that..a conditional offer. **
.

 

[pralay]

---**True for all practical purposes but not a disqualifier if not meeting.(See last Page/paras of yates Ac21 memo).**

Including job code?

 

[TheRealCanadian]

I guess we are not talking about "employed abroad" issue, bacause that makes AOS invalid.

Absolutely not. So long as the employer's and employee's intent remains there, taking employment abroad does not invalidate the AOS in the slightest.

However, when you go abroad for long term assignments, to prove that your "base location of employment" is still USA

No you don't. You just need to prove that the intent to hire is still there, and that you intend to accept the permanent position.

 

[Participant]

Including job code?

Yeah for the present.For GC the same candidate is for Slghtly different Job,salary(higher) and he is duly qualified for that by his ed,exp .what present job pursued(H1 LCA) is similar ed,lesser job and lesser pay.
The employer letter enclosed with GC application is like normal EVL stating he will be employed at that level and pay,permanantly after AOS.

 

[Participant]

Absolutely not. So long as the employer's and employee's intent remains there, taking employment abroad does not invalidate the AOS in the slightest.



No you don't. You just need to prove that the intent to hire is still there, and that you intend to accept the permanent position.

I beleive, for AOS(AdJ.of 'status'),the candidate should have been
A)on 'Some valid' status in US and prove he has not abandoned/violated that status when queried/at RFE and
B)
not 'abandoned' his legal presence here/left contry at any time while the application is pending or should have taken Permission(AP) to be away while in pendency.
Subject to meeting the above,one may be fine in the broad sense only.

 

[TheRealCanadian]

on 'Some valid' status in US and prove he has not abandoned/violated that status when queried/at RFE

This is only partially correct. In order to adjust status, the alien must be either in valid status at the time of filing, or eligible for relief under 245k or 245i - or statutorily eligible to file when out of status without penalty by virtue of being an immediate relative of a US citizen.

Once the person has filed the adjustment, the pending adjustment itself keeps one legal in the US. There is no requirement to maintain any other non-immigrant status, and in fact most other NI statuses cannot be extended after an I-485 is filed due to immigrant intent.

not 'abandoned' his legal presence here/left contry at any time while the application is pending or should have taken Permission(AP) to be away while in pendency.

First off, there is no requirement to maintain legal presence in the US in either the INA or the regulations that I am aware of. Second, AP is not permission to leave the country; it merely provides the ability to re-enter, as do an H or L visa. My wife filed her I-485 when on B-2 status, then left before receiving either AP or her receipt notice. She re-entered a week later by requesting H-4 status at the POE, with no problems.

 

[Participant]

This is only partially correct. In order .

Yes,In order to apply to AOS some body is to be on a valid status or
some kind of allowed condonement on violations.
The original issue projected was hovered around AOS only and abscense from the country and not mentioning about Dual intent visa type holding.
In abscense of any H or L ,I or similar any provisons, beleive it attracts the lines mentioned in one of CIS procedural memoranda as below.
"Travel outside the US with out AP may have severe consequences
for certan individuals who are in the process of adjusting their status.
Such individuals MAY be unable to RETURN to the US,their applications may be DENIED or *BOTH*".
Some individuals MAY return with all this also.But the things are changing
at POEs now and lots of questions are posed at these points
and which quite some time ago were considered just 'NORMAL and routine' entry.
So one to choose how to be safe reasonably...

 

[pralay]

My wife filed her I-485 when on B-2 status, then left before receiving either AP or her receipt notice. She re-entered a week later by requesting H-4 status at the POE, with no problems.

I know it works for several people (very same way I don't get speeding ticket everyday even though I drive over speed limit). Obviously it was OK if her B-2 was for multiple entry which would allow her to re-enter irrespective of her AP approval/denial.
Here something from murthy.com:

http://www.murthy.com/news/ukpbadpl.html

INS considers a pending I-485 to be abandoned when the applicant departs the U.S. unless s/he was granted AP before leaving the U.S. The current method of applying for AP is by filing the Application for Travel Document, Form I-131. It is only upon approval of the I-131 that the traveler receives the AP document, Form I-512................

Also, some more:
http://www.murthy.com/news/n_favint.html

The USCIS stated that if a person has an advance parole and applies for a new advance parole while in the United States, s/he may travel and reenter the U.S. using the already approved advance parole. The person must return during the time period permitted under that advance parole that was approved before the person's departure. The USCIS specified that the person cannot remain abroad after the expiration of the first advance parole and then seek to enter on the second one after it is approved.

 

[TheRealCanadian]

The original issue projected was hovered around AOS only and abscense from the country and not mentioning about Dual intent visa type holding.

You're right, and we got a little sidetracked. My point is that there has been a lot of talk about actions automatically causing the AOS to be rejected, or one automatically having to file taxes even when non-resident. Things aren't that cut and dried.

That works both ways - in some ways you get some additional flexibility in terms of working overseas and not having to declare worldwide income. In other ways, like ensuring you can prove the intent to work permanently in the US, it may not be to one's advantage.

Just trying to inform people of the nuances.

 

[TheRealCanadian]

Obviously it was OK if her B-2 was for multiple entry which would allow her to re-enter irrespective of her AP approval/denial.
Here something from murthy.com:

Everything I've seen indicates that the abandonment of the I-485 only occurs when one is unable to re-enter the United States due to immigrant intent caused by the pending adjustment. The only way to get around that is by having some means of re-entry - AP, or an H, L or (I think, don't quote me) an E.

For what it's worth, my wife was statutorily inadmissible in B status becaue of her pending adjustment when she returned; she could only be admitted in H status. She never had a "multiple-entry" visa because as a Canadian citizen, she just presented a copy of our marriage certificate and a copy of my H-1B approval notice and she was in like Flynn.

The point I'm making is that she was OK because she had a means of being admitted again. Had I lost my H-1B status it would have been a completely different story.

 

[Kumarash]

Thanks to all contributors

Thanks to all who have contributed to my question. That has given me a great insight on possible issues that i may encounter while travelling on a foreign assignment through a US employer. PLease continue to post discussions/experiences that may relevant.

Thanks a lot!!!