I140-NIW and Advance Parole?

[Reza-EB2 NIW]

Dear Friends,
I filed my I140-NIW in June 28 at NSC while I was on OPT. I haven't received any decision about my case yet. I received the H1B approval a few days back. Due to a family circumestances, I have to go back to my home country (Iran) for a few weeks. I am not so sure that I will be granted H1 visa if I apply through US embassy upon return. That's why I am thinking to apply for I485 because i have been told that I can apply for Advance Parole. I have two questions:

1) Can i file I485 while my I140 is pending?
2) If I get the AP and come back to USA, is there any possibility that I become out of status in case my I140 petition get rejected?



Thanks,

 

[civ2ru]

Dear Friends,
I filed my I140-NIW in June 28 at NSC while I was on OPT. I haven't received any decision about my case yet. I received the H1B approval a few days back. Due to a family circumestances, I have to go back to my home country (Iran) for a few weeks. I am not so sure that I will be granted H1 visa if I apply through US embassy upon return. That's why I am thinking to apply for I485 because i have been told that I can apply for Advance Parole. I have two questions:

1) Can i file I485 while my I140 is pending?

2) If I get the AP and come back to USA, is there any possibility that I become out of status in case my I140 petition get rejected?

1) Yes, if your priority date is current (seems like it would be). Be sure to include a copy of your I-140 filing receipt.

2) So you have valid H1 status now. People (and lawyers) keep arguing whether re-entering the US on AP invalidates H1 status or not. Most say it doesn't - do some more research (this has been discussed extensively at these forums), also try googling "Cronin memo" and possibly get a professional opinion on the matter.

 

[justgc06]

1. yes. you can if the PD is current.
2. As per the 'cronin memo', using AP does not affect your H1 ( any non-immigrant visa). but using EAD affects H1 status.

 

[garemani]

Okey, being from the same country and having the same worries I guess I can answer your questions pretty well considering your concerns:

1) you can file I-485 simultaneously because Iran is not among retrogressed countries. Following by filing I-485, you can get AP which is straight forward.

2)If you return with your AP, you will be definitely out of H1B status. I had the same situation and I have very reliable lawyer. You have one possibility here, if you are out of H1B and your I-140 gets rejected, you are screwed! you need to leave the country as you will be out of status. So, lawyers strongly suggest not to use EAD and AP before your I-140 approval and try to stay on other legal statuses such as OPT, H1, etc.

Do not worry, you can easily get your H1B restamped at the embassy. I know several students from Iran that recently traveled there and renewed their F1 visas. I suggest that you get an appointment for renewing your H1B and apply there on your way home. If you get rejected (the chance is really low), you can then use your AP to return to the US as a back up plan!

Again, coming back with your AP pushes you out of H1B. because the H1B that you already have (I assume) is just a piece of paper and it's not stamped on your passport. This might not be the case for people from other countries as they usually have multiple entery H1B visas. But Iranians get single entery visas which required re-evaluation each time you leave the US. So, suggestions from people who are not Iranian are not usually applicable to our cases. Thus, you need to restamp it when you are going outside the US, which I think you dont want to do this...

Let me know if you have any question.

 

[Reza-EB2 NIW]

Dear Garemani,
Thanks so much for your detailed answer. Can you please send me an email to reza@cavs.msstate.edu and let me know about the information of your lawer?
You also mentioned that you had the same situtaion as me. How long did it take to get H1B visa after you applied at the consulate? when and where?
Did they ask you whether you had applied for the permanent residency? I am worried if they have my petition information, so they me reject my H1B visa because I intend to immigrate to USA. Thanks for this information. I am really happy to find you in this forum.
Thanks,