I-485 Employment based Interview - Applicant out of Country

[Khan_Man]

Hello All,

My employer applied for my I-485 in 2004 and I have been called for an interview from the NBC in July. I was selected and transferred to our company's London office to restructure our European operations and have been based in the UK since January 2008. I have been using AP and EAD to enter and exit the US.

As part of my interview document list I have been asked to provide paystubs and W2s. My payroll is now UK based and our tax consultants fill out my taxes in the US and do what is needed to assure I conform to US tax law.

Can someone please advise if I should abandon my GC application since I have been out of the country for 1.5 years. Or that I can still apply based on the fact that I work for the same US company that hired and petitioned me. I really do not want to give it up since I spent so many years pursuing it and would like to move back to the US by the end of this year.

My details are below and I would really appreciate some guidance.

Thanks,


SK

EB-3 I-485 Application: July 2004
I-140 Approval - January 2005
Multiple AP and EADs
July 15 2009 Interview to determine GC outcome.

 

[Jackolantern]

If your Advance Parole is valid (meaning that you applied for it when you were in the US and did not leave the US before it was approved), you can go back to the US for the interview. You don't need to be employed with the company while the I-485 is pending; you'll be fine if you provide a employment letter or some other document showing that you've been employed outside the US with the same company or parent company and that they expect to employ you in the US when your GC is approved.

However, if you have not been spending the 1-2 months in the US during the time the AP was pending, it is not valid for entry and even if they let you in with it, they can deny your I-485 for abandonment if they later notice that your travel patterns indicate you were outside the US when the AP was filed or pending. However, if you have a valid H1 or L1 stamp in your passport, for a petition that was approved before you left the US, you can use that to enter the US and your AP validity wouldn't matter.

So if your AP/H1/L1 is not in good order as explained above, you would be taking a risk by going to the interview (including being refused entry to the US). If you want to avoid that risk, you can switch to consular processing and interview for your green card at a consulate in the UK (or a consulate in your country of citizenship, if it's not the UK). If that's what you want to do, you can file I-824 ASAP to request consular processing, and send to USCIS a copy of the interview notice with a copy of your I-485 receipt and a letter explaining that you have requested consular processing and will not be showing up for the AOS interview.

Yes, the switch to consular processing is going to introduce some delay, but that's probably not going to hurt you. No more EB3 green cards will be granted before October 1, because the EB3 quota for FY2009 has been used up. So even if you did the interview in July, they still couldn't give final approval until October. And if you use consular processing, they generally act fairly quickly once your priority date is current; you'll probably get an interview within 3-6 months once your PD is current, unlike with I-485 where they often leave it pending for 1 or 2 years or more even when the PD is current.

 

[Khan_Man]

Jack,

Thank you so much for such an excellent response. I truly appreciate it.

My AP is valid till Oct 2009, however I do have a slight problem with it. My previous AP expired in August 08 and my current one was approved a month after that in Sept 09. So I was without a valid AP for a month and was outside of the US when it was approved. I did however enter the US twice with the same AP without any issues. Do you think I can still attend the interview given that they let me in the country twice with my current AP?

I think I am inclined to go with your advice of applying for Consular processing and hoping for the best after that.

Thanks again for your advice.

 

[ginnu]

Jack,

Thank you so much for such an excellent response. I truly appreciate it.

My AP is valid till Oct 2009, however I do have a slight problem with it. My previous AP expired in August 08 and my current one was approved a month after that in Sept 09. So I was without a valid AP for a month and was outside of the US when it was approved. I did however enter the US twice with the same AP without any issues. Do you think I can still attend the interview given that they let me in the country twice with my current AP?

I think I am inclined to go with your advice of applying for Consular processing and hoping for the best after that.
---------------------once you apply for Consular processing then you will not be eligible for AP or EAD.
Thanks again for your advice.

---------------------

 

[Jackolantern]

The fact that they let you in with the AP doesn't mean you're safe. If they discover that you departed before the approval, they can still cancel it after you've used it or refuse you at the port of entry. Perhaps they are unlikely to do that given that they haven't noticed the mistake on 2 prior occasions, but the risk of them doing that is still there. In your case, because you're being interviewed and you've been out of the country so much, the interviewer has more time and more incentive to dig through your details to find any discrepancies, than the officer at the airport who doesn't want to spend more than 2 minutes.

And as Ginnu mentioned, choosing consular processing will mean you can't use your AP to enter the US. You'll have to get a business visa to take a short trip, unless your passport allows you short visits via the visa waiver program.

 

[mmed]

My previous AP expired in August 08 and my current one was approved a month after that in Sept 09. So I was without a valid AP for a month and was outside of the US when it was approved. I did however enter the US twice with the same AP without any issues.

This is a frank abandonment of your I-485. Without H you have to come and stay in US by Aug 08 and stay till the new AP is issued (September 09). Entering the country with that AP is not an excuse but on the other hand may be a problem for you.

 

[Khan_Man]

Thanks to everyone for your respective replies. I really mean that.

I will go ahead and apply for consular processing. The way I see it I have waited so long for this, what is a few months or even a year more.

One final question that I have is that I ported jobs using AC21 provisions two years after my I-140 was approved and concurrent filing. Same job classification and well beyond the 180 days etc. Will that have any effect whatsoever on my changing from AOS to consular processing in the UK. I looked online and could not get a clear definitive answer on this. Some were of the view that you cannot port jobs if you are consular processing, but I am not sure if that applies to me as I started off with AOS and am modifying to CP.

Thanks again everyone.

 

[TheRealCanadian]

If you have used AC21, then you *must* adjust status - you get no AC21 relief if you do consular processing.

You really need an attorney at this point.

 

[Khan_Man]

Thanks for your response. I swear the US immigration process really does suck the life out of a person. They make it drag on so much and there is so much to keep abreast of that it is really impossible to wiggle at all if one experiences life changing events. I wish my company's incompetent lawyer had told me about these options, I would have simply stamped my H1 visa in London and would be waltzing in for my interview.

What I think I really need to do at this point is just simply withdraw my application. I spend 10 years of my life in the US and nearly 7 years in this process and I really do not need the stress that it brings with it, or waste more of my money. I am at that point where I am well settled in the UK again and question the merits of even going back to the US.

But then a second part of me fills up with rage thinking of the hours and days I spent on these forums and talking to other candidates and I want closure on this, closure in the form of getting my application approved. That part says just hop on a plane and go for the interview. Surely the interviewer must be human and will realize the toll this takes. However, if I get denied or God forbid banned from the US for a few years then I lose both my GC and my career is damned because I need to make frequent trips back to the US.

The land of the free ... my brown ...

If you have used AC21, then you *must* adjust status - you get no AC21 relief if you do consular processing.

You really need an attorney at this point.

 

[Jackolantern]

One final question that I have is that I ported jobs using AC21 provisions two years after my I-140 was approved and concurrent filing. Same job classification and well beyond the 180 days etc. Will that have any effect whatsoever on my changing from AOS to consular processing in the UK.

You can use consular processing if upon green card approval you're going to back to the employer who filed the I-140 (this also assumes the I-140 was not revoked by the employer when you left). The fact that you worked for other employers in the interim doesn't stop you from resuming your GC process with the original employer.

Note that if you have an unexpired H1 petition which was approved before your previous AP expired, you can still use it to get your passport stamped and reenter the US with it to continue your AOS process, as long as you're going back to the same H1 employer.

Surely the interviewer must be human and will realize the toll this takes.

They're human? I never noticed. These people separate toddlers from their parents ... you think they'll give a damn about you?

Sure, you could always just show up for the interview and see what happens. If consular processing is unavailable because you've severed ties with the original sponsoring employer, you don't have anything to lose by going to the AOS interview, except the stress of worrying if they'll reject the green card during or after the interview.

Then again, if your UK job depends on taking trips to the US, you would have something to lose ... because by filing the I-485 and continuing to keep it alive, you have demonstrated immigrant intent. And that immigrant intent is a barrier to taking future visits as a nonimmigrant if your green card is denied. So for that reason it may be better to withdraw the I-485, then you can cite the fact that you withdrew your I-485 if you are questioned about immigrant intent.

The land of the free ... my brown ...

"Land of the free" only applies to citizens of the US. Noncitizens are treated like prisoners who have been released on probation.

 

[Khan_Man]

Thanks for you response mate.

My H1 is valid till July 30th so I would have to really get it extended for a 7th year before I apply otherwise I am sure the consulate here will question why are you applying for a visa just for a month. And I will also have to reschedule my interview date forward. All of it is possible, if my employer is willing, which I really do not know. It is definately an excellent asset to have.

You guidance really brings things in perspective. At times one just has to cut their losses and move on. In this case my loss is going to be 7 years of my life I wasted on this. But it is OK. I got want I wanted from the US in terms of education and work experience. I am just dissapointed that one mistake on my part cost me the whole process.

I feel it is best to withdraw my I-485 application and just get on with my life. I will write to the USCIS National Benefits Center where my application is pending and provide them a copy of my I-485 and a letter stating that I am withdrawing this application as I am no longer interested in immigrating to the US.

You can use consular processing if upon green card approval you're going to back to the employer who filed the I-140 (this also assumes the I-140 was not revoked by the employer when you left). The fact that you worked for other employers in the interim doesn't stop you from resuming your GC process with the original employer.

Note that if you have an unexpired H1 petition which was approved before your previous AP expired, you can still use it to get your passport stamped and reenter the US with it to continue your AOS process, as long as you're going back to the same H1 employer.

They're human? I never noticed. These people separate toddlers from their parents ... you think they'll give a damn about you?

Sure, you could always just show up for the interview and see what happens. If consular processing is unavailable because you've severed ties with the original sponsoring employer, you don't have anything to lose by going to the AOS interview, except the stress of worrying if they'll reject the green card during or after the interview.

Then again, if your UK job depends on taking trips to the US, you would have something to lose ... because by filing the I-485 and continuing to keep it alive, you have demonstrated immigrant intent. And that immigrant intent is a barrier to taking future visits as a nonimmigrant if your green card is denied. So for that reason it may be better to withdraw the I-485, then you can cite the fact that you withdrew your I-485 if you are questioned about immigrant intent.

"Land of the free" only applies to citizens of the US. Noncitizens are treated like prisoners who have been released on probation.

 

[Jackolantern]

Thanks for you response mate.

My H1 is valid till July 30th so I would have to really get it extended for a 7th year before I apply otherwise I am sure the consulate here will question why are you applying for a visa just for a month.

That's not a problem. You can explain that you're not just going to work for a month, you're going back to the US to wait for your I-485 to be completed. Remember the I-485 allows you to stay in the US until it is approved or denied, so the 1 month remaining on the H1 doesn't mean you'd have to leave the US in 1 month. Furthermore, you are eligible to recapture the time spent overseas and have that added back to your H1 validity, so in reality you actually have more than a year of H1 status left, not just 1 month.

And I will also have to reschedule my interview date forward.

Why?

You guidance really brings things in perspective. At times one just has to cut their losses and move on. In this case my loss is going to be 7 years of my life I wasted on this. But it is OK. I got want I wanted from the US in terms of education and work experience. I am just dissapointed that one mistake on my part cost me the whole process.

I feel it is best to withdraw my I-485 application and just get on with my life.

If you are settled in the UK, that may very well be the right decision for you. Especially since you can't even count on getting a green card soon after the interview, because of the unavailability of EB3 green cards until October. And when October arrives you still don't know what will happen; you could end up waiting another year or two depending on how the priority dates move (is your priority date July 2004, or is that when you filed the I-485?).

 

[Khan_Man]

Jackolantern, thanks so much mate...that is amazing... I have travelled a total of 585 days internationally since my second H1b was approved in 2006.. this has been during my employment in the US (very high travel job) and after I transitioned to the UK. If I could have those days added to my H1b, apply for my H1b stamp, reschedule my interview with the USCIS to say August 15th considering it will take some time to process the recapture, enter the US on my H1b and resume AOS processing I should be golden... I actually think that this could work. I am suddenly excited again.

Please bear with my questions. I assume my employer will have to petition for my H1b time recapture using form I-129..? Also, I never got a H1b stamp on my passport as I have been entering on my AP document.. that should still be OK right? I actually have all my APs showing my stamps into the country and all my flight itineries from the US stashed so I have proof of my entry and departure and my company will vouch for it. I really need a good attorney for this and no the solitaire playing yo-yo my company employs...

That's not a problem. You can explain that you're not just going to work for a month, you're going back to the US to wait for your I-485 to be completed. Remember the I-485 allows you to stay in the US until it is approved or denied, so the 1 month remaining on the H1 doesn't mean you'd have to leave the US in 1 month. Furthermore, you are eligible to recapture the time spent overseas and have that added back to your H1 validity, so in reality you actually have more than a year of H1 status left, not just 1 month. ?).

My priority date is November 2003 which puts me in pretty good shape priority date wise. You are right that I am now well settled in the UK but as my friend said regarding this that the elephant has gone through and only the tail is stuck now so just push that little bit more..... I really appreciate your guidance and advice.

If you are settled in the UK, that may very well be the right decision for you. Especially since you can't even count on getting a green card soon after the interview, because of the unavailability of EB3 green cards until October. And when October arrives you still don't know what will happen; you could end up waiting another year or two depending on how the priority dates move (is your priority date July 2004, or is that when you filed the I-485?).

 

[Jackolantern]

Jackolantern, thanks so much mate...that is amazing... I have travelled a total of 585 days internationally since my second H1b was approved in 2006.. this has been during my employment in the US (very high travel job) and after I transitioned to the UK. If I could have those days added to my H1b, apply for my H1b stamp, reschedule my interview with the USCIS to say August 15th considering it will take some time to process the recapture, enter the US on my H1b and resume AOS processing I should be golden... I actually think that this could work. I am suddenly excited again.

I think the recapture can be processed at the consulate itself, as long as you provide the summary of the time spent overseas along with supporting evidence.

Avoid rescheduling the interview, because they are inflexible and unpredictable about giving you a new date. It might be 1 month later or it could be 6 months later, and you have no say in it. Sometimes they even deny your I-485 for not showing up at the original interview, even though you requested the reschedule. Then you have the expensive hassle of getting the case reopened or appealed.

Please bear with my questions. I assume my employer will have to petition for my H1b time recapture using form I-129..?

In your situation I don't think they need to use an I-129 for the recapture. You probably can use the approval notice at the consulate along with evidence of your absences from the US. But you should ask in the H1 section of this web site for what the process would be in your situation.

Also, I never got a H1b stamp on my passport as I have been entering on my AP document.. that should still be OK right? I actually have all my APs showing my stamps into the country and all my flight itineries from the US stashed so I have proof of my entry and departure and my company will vouch for it.

The use of the AP makes your situation tricky because of how you left before it was approved. So if you have other proof like exit/entry stamps in your passport, or boarding passes, or copies of your I-94's, it would be better to use that instead of drawing attention to the AP.

My priority date is November 2003 which puts me in pretty good shape priority date wise.

If you are not from India or China, that is a decent date that probably will be current in October. However, that doesn't mean they will finalize your GC in October ... your PD was current from October of last year until March of this year, during which time they still left your case idle although it was ripe for approval.

 

[Khan_Man]

Jackolantern... thanks for the info again. I have posted in the H1 section of the forums and I am hoping someone will response. Thanks again for all of your help and I will write on the end result once this whole thing is over and done with...

I think the recapture can be processed at the consulate itself, as long as you provide the summary of the time spent overseas along with supporting evidence.

Avoid rescheduling the interview, because they are inflexible and unpredictable about giving you a new date. It might be 1 month later or it could be 6 months later, and you have no say in it. Sometimes they even deny your I-485 for not showing up at the original interview, even though you requested the reschedule. Then you have the expensive hassle of getting the case reopened or appealed.

In your situation I don't think they need to use an I-129 for the recapture. You probably can use the approval notice at the consulate along with evidence of your absences from the US. But you should ask in the H1 section of this web site for what the process would be in your situation.

The use of the AP makes your situation tricky because of how you left before it was approved. So if you have other proof like exit/entry stamps in your passport, or boarding passes, or copies of your I-94's, it would be better to use that instead of drawing attention to the AP.

If you are not from India or China, that is a decent date that probably will be current in October. However, that doesn't mean they will finalize your GC in October ... your PD was current from October of last year until March of this year, during which time they still left your case idle although it was ripe for approval.