I-485 filling and Emergency travel ( Mr Mills this is really tricky)

J

Jawan1

Banned
Let\'s say I have filled I-485 and AP and I have to travel home in an emergency before AP is approved.

I have H1 which is valid till 2004, but no visa stamp.
If I get visa stamp then I can reenter US, right ? Do they consider that I have abondeoned I485 once I left US without AP ?
If US counsulate refuses to stamp visa in the passport for some petty reasons , what are my options ?

Could I file I-824 and start CP ? wait for the interview and assuming they
have less descriation at Immigrant visa interview and they stamped Immigrant visa, then I can reenter US. Right ?
 
You can apply for AP just before leaving and ask somebody to mail it to you

in India after it is approved. And incase your H1 stamping is denied you can use the AP to come back into US. Filing for AP is a very simple process and you can do it yourself. And while you are at it Apply for an EAD also.

I dont think your 485 is considered abondoned just because you left
the country without AP (I am not very sure about this) Because unless
a RFE is issued or some sort of check is initiated, INS doesnt know you left the Country !

Again check with your lawyer ... this is a straightforward scenario.
 
No Title

Well, I have been given an understanding that you have to have AP before you fly. Someone can not mail you AP while you are in India. At the POE can they not check the date AP was issued and date you flew.
 
To use AP, it must have been approved before you leave this country

Alternatively, you can apply for emergency AP at your local INS office to get it on the same day......

My understanding is if you are going to use your H1 visa, you can leave with out your AP approval.......but once you use AP to enter, your H1 is no longer valid and you need EAD to work here.......
 
No Title

I have valid H1 till 2004 , but no visa stamp.

So do you guys think that If i get H1 visa stamp then you can enter even though you left without AP or without valid visa stamp.
 
You can either use H1 or apply for AP

If you choose to apply for AP, make sure you get approve before leaving and you should be able to get it right away at a local INS office. You may also use your valid H1 but DON\'T apply for AP. Having
somebody else mail the AP approval notice to you is a BAD idea! I believe once you apply for AP, you can no longer use your H1 - valid or expired - to enter US.
       -- check with your lowyer!
 
Since you have valid h1b, go to India and get the visa stamped. You were not abandan your 485 if yo

 
 
Jawan..

If you have not used your EAD for work then you can travel only our HIB but will have to obtain a VISA in your home country (which may take time depending on how soon will the consular office give you visa). It would be good to get a letter from your work requesting a visa. If you are using EAD then get an AP before you travel The filing instructions for AP clearly states that you have to receive the AP before you leave the country otherwise the AP will be deemed as abandoned. Regarding 485, if you have received the receipt notice from INS you will be fine and your process will not be deemed to be abandoned
 
No Title

 I THINK THIS IS CONFUSING. It is not necessary that you have to use EAD if you want to use AP to renter US. You could be working on H1 and reenter using AP , if you don\'t have H1 visa stamp in the passport.

Hey Guys Please comment on this.
 
Just applying for AP does not invalidate your H1 visa

it becomes invalid only when you use the AP to re-enter.......

> So do you guys think that If i get H1 visa stamp then you can enter > even though you left without AP or without valid visa stamp

Yes you can....but the only part I\'m not sure which I think you must check with your lawyer anyways is after applying for your AP can you leave(before the approval)? however you might use H1 visa to re-enter....
 
Answers/clarifications

First off
As pointed out by Milli and others H1 : mere application for AP or having an approved AP, does not mean H1 is no longer valid. EAD usage and the actual green card only can supercede the H1.
Based on June 2000 memo from INS, H and L visa holders need not worry about abandonment (see INS FAQ on Advance Parole)

Answering original Q:
Getting a new H1 stamp after 485 application does not abandon your 485.
If US refuses to approve your H1 stamp, you can use AP if you have it. There are conflicting opinions on whether AP can have an approval date on which the applicant is not in US. The various rules and clarifications of INS say that applicant should apply for AP while in US. It is not clear whether the approval should be in your hand while going out of US.

However factor this: some airlines look for some form of valid visa or document over and above an expired I94 nowadays.
Some airlines have stated that they require a transit visa for those who do not have a valid stamp in passport (but valid I94 and status) or a valid AP. This condition applies to all who have a return ticket.

Answering your Q on pursuing CP. Yes you can pursue CP if your H1 is denied. But beware, if the reason for your H1 is still valid, your GC can also be denied. It all depends on what kind of problem you perceive at the time of H1 stamping.

I understand that you have not come to a point at which you have to take a turn and you are trying to plan your life\'s path as far ahead as possible....
 
apply for visa and enter on h1. this hypothetical scenerio

that you are trying to get the information about is twisted around so
much. two options either apply for visa on h1 or forget about h1
and get back on your AP. you will be cancelling H1 (leagally) if you
use it. INS cannot catch if you used AP and still think you are using H1, but later can cause a problem. This should stop the
discussion.
 
No Title

No, The discussion will not stop untill we understand. You also don\'t know the answer , so you better listen and you might learn something.
 
OK let me Continue the discussion.

Some people are saying that if you used AP to enter then your H1 status is automatically cancelled and you have to use your EAD.
is this true ? if this is true then what about if H4(dependents) used AP to reenter but doesn\'t want to work and haven\'t applied for EAD ? EAD is required only when you want to work, right ? so what happens to H4 ?
 
more continued .. & a question..

Once you use AP, technically your status is AOS (adjustment of Status). As derivative applicants, all your dependents also automatically will have the status of AOS. You need EAD to work once you use your AP and your dependents also need EAD cards if they choose to work in USA while you are in AOS status.

If you have a valid H1, it is not a must that you need to get AP & EAD unless your dependents want to work (or even if you want to do a part-time or second job). Some people seem to prefer this as you can continue to work until your six year H1 limit, even if 485 is denied for any reason.

But once you use EAD or AP, your status changes from H1 to AOS. While you are in AOS, if your 485 is denied, but if you used only 4 out of 6 years of H1 visa time, what are the options? Can someone knowledgeable enlighten us on this topic? Can your employer apply for an H1 visa for you for the remaining 2 years?

Peace..
 
You do NOT have to leave the country if I-485 ...

is denied and you are maintaining valid H1-B, H4, L1 or L2 status at all times after 485 is filed.

* Disclaimer - Use at your own risk. I am NOT a lawyer *
 
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