How long can you stay out of country on AP

kingno1

Registered Users (C)
Guys, Another question.
If I was to enter US on AP, Is there a timelimit where I can stay in India.
To be more specific, My wife is going to India this summer for vacation. If she is going to use AP for reentry into US, is there a max time where a person can stay out of country? She want to go for 3 months. If she stay for 3 months, will it pose a problem while using AP?
Thanks,
 
Technically You can stay out of the country till your AP is valid but you need to come back before it expires. Practically you should be back in six months and importantly you should come back before your 485 gets approve.
Your 485 is not going to approve in near future as per your ND
For 3 months it should be OK, and you have plenty of time on AP if it is valid for a yr.
 
Thank you Vipsha..
That is really helpful..
Also, My wife is on H4, worked for a month and stopped.
Can she use H4 for reentry? or has to use AP since she worked on EAD?
 
Nope, you Need AP to renter

Once you use your EAD, Her H4 is not valid anymore and she needs an AP to renter, if she leaves the country.

-MyGcWaiter
 
MygcWaiter,

Is it that H1 works differently from H4? I just entered the country on my AP, but in discussions with my lawyer, she mentioned that you can always maintain dual status as an adjustee and on H1. Her reasoning for people not wanting to maintain the dual status was that in case AOS was rejected, then you haven't wasted the time on your H1 and can still work the full term.

As far as entering the country on H4 is concerned, what my lawyer said was you have to have the 485 receipt with you when you enter on H4, otherwise it is considered abandonment of AOS. Other than that as long as H4 is valid (off course this is keeping in mind that the H1 the H4 is on is valid), then there should be no problem entering on H4.

Those are just my 2 cents based upon a long conversation I had with my lawyer before leaving the country!
 
Here is my 2c

140_takes_4ever,

AP and EAD are a bit different (based on which one is used). If some one is on H1/H4 and uses EAD to work then that means they switched to AOS pending status and they must use AP to travel.

On the other side if they never use EAD and have a valid H1/H4 then they can use either AP or H1/H4 to travel. Even if they use AP to come back still they can continue work using H1 (provided they didn't use EAD before they left).

It becomes a bit tricky when H4 dependent is travelling! Here is why: Let's say as in current case the H4 dependent worked on EAD (so they abandoned H4 status and switched to AOS pending status) then (s)he must not leave the country without obtaining AP. But technically, while coming back that H4 dependant can use H4 to come back provided the spouse/parent is still on H1, the GC is not yet approved for the primary filer and the travelling dependant has a valid H4 visa stamp in the passport. In other words if a H4 dependant switched to EAD status then possibly can get back to dual status by travelling outside the country once.

- PCee
 
PCee,

I guess that answers my question. It is good to get some clarification on this issue.

But with regards to the last point you made, (h4 working on ead and entering the country on H4), isn't that considered as abandoning the AOS application?

Thanks for the reply!
 
Welcome back 140,

H4 will be valid till H1 is valid, so if primary applicant is not using EAD his/her H1 is valid and hence H4. No matter if secondary applicant is using EAD or not. My wife used EAD for two days but her H4 was valid since I never used my EAD.
 
140_takes_4ever,

Abandoning happens if some one leaves the country without proper reentry permission (without which one cannot come back). Coming back with H4 is some thing like staying on H1/H4 and not using EAD at all from the begining.

H4 has two things attached to it.
1. Visa stamp (some thing like AP) which is used to enter into US and
2. The status (permission to stay in US) that is given at Port of Entry (comes with I-94) or by filing for H1/H4 extension if one is already in US with same status. In case of GC, filing for 485 itself gives this status.

If some one on H4 uses EAD to work (doesn't matter! even for a day or two) they loose 2nd part of H4 but 1st part of H4 is still valid until expiry and the primary's H1 is valid.

AC21 gives authorization to travel on valid H1/H4, but in above case by using EAD the H4 dependent lost H4 so must obtain AP to travel, if not technically it can be treated as abandonment.

Lets say if some one entering with AOS pending, and valid H1/H4 then at Port of Entry the INS officer may check the 485 status and if it is approved may ask you to go to local INS for differed inspection. At the time instead of giving a I-94 they will simply stamp 485 approval.

Let's say the primary applicant is in the country and only H4 dependant is travelling and the GC is approved by that time. Then the officer will check if the H4 was valid at the time the candidate left the country. If H4 was not valid then must have an AP to be admitted.

Does INS know if some one used EAD for a day or two which could make H4 invalid? Chances are very low! But face it, the officer may ask (at PoE or at local INS) a point blank question "Did you ever work on EAD before you left the country"? and one is not suppose to lie and if the anwer is "Yes" then the person is in a big trouble.

- PCee
 
FOLKS! Do U now know why my screen name is Pceefan...absolutely fab advice..Pcee u truly are an asset!
 
Finally

Still confused abt what option she has to use...
H4/AP:(
Because of this SARS, I am planning to buy ticket in Northwest instead of through HKG.
Also, I remember someone mentioning abt "have to get transit visa at amsterdam"....How much true is that?

Man, one of these days, travelling overseas is a big pain in the @$$.
 
check with the airlines , though i am pretty positive u do't need a transit visa if u r not planning to go out of airport.
 
what abt different POE from SFO?

I am planning to take Atlantic route instead of pacific bcos of this SARS. The travel agent gave me a ticket with POE at Detroit instead of SFO.
Will that be a problem for using H4/AP for reentry if the POE is different from SFO since our 485 is pending at CSC.
 
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