India Trip without AP. Urgent pl.

R

rohit_97

Registered Users (C)
Hi,

My wife is travelling to India on 15th of this month and her 485 is in final stage (Jan 2003 filing). She has a valid H4 VISA but she doesn't have AP. Will it be problem for her while returning? We just replied a RFE 2 weeks back and I got a mail on 8th that my response was received on 5th of Nov. Would it be a problem if she gets approved before or after leaving? Kindly suggest. Thanks.
 
By the time she returns, if the 485 is not approved - there is no problem. But if the 485 gets approved before she is back then she will need AP to get in. Her H4 will no longer be valid.
 
Thanks Dharam. How is the probability of getting approved before Nov 26th. ALso do they have any kind of online check at immigration clearance? I mean how do they come to know if the person simply mentions the status as H4? Thanks.
 
rohit_97 said:
Thanks Dharam. How is the probability of getting approved before Nov 26th. ALso do they have any kind of online check at immigration clearance? I mean how do they come to know if the person simply mentions the status as H4? Thanks.
Click to expand...

Her H-4 would be still valid until either one of you goes for the stamping. H-4/EAD/AP's don't get revoked until you get the stamping done.

Therefore, please make sure that you don't get the stamp don't once you get the approval letters. Wait for her to come back and then go together or else her H4 would be revoked then she'll have to go through American Embassy in India.
 
She can go with a valid H4 visa, but come back soon because you have no way to know when her case will be approved.

After her case is approved, her status H4 will not be valid, but Without any knowledge about approval while she is outside USA, she can enter USA with her valid H4. But it is up to the officer at any entry port to be satisifed according to USCIS policy.

Just curious.. Did you apply for her AP before?
 
I think what tufan is saying is right.

Your H1 / H4 is valid until you stamp your passport. I have a friend who was in India when his GC was approved, he got married, he brought his wife to US, applied for her I-485 and then got his passport stamped.

Please check with your lawyer ...
 
that's true, but there is no gurantee. Just up to the immigration officer at any entry point. Every officer has duty to determine and to be statisfied. search in this forum for policy of USCIS that Parlay found and copied/pasted.
 
Thanks guys for all the suggestions. She never filed for AP. but we always mantained our H1/H4 status and it is valid upto May 2005. My guess is we may get approval in couple of weeks time. Thanks again.
 
whats_in_name said:
Your H1 / H4 is valid until you stamp your passport.
Click to expand...

It's important to note that if you are in the US, passport stamping grants you no benefit. You are a permanent resident as of the day your I-485 is approved; all passport stamping does is provide you with evidence of your status and kickstarts the plastic card process. If you're outside the US, who knows. It might not be until your re-entry.

The spouse should be able to re-enter on the H-4 after her and/or the primary's I-485s have been approved.

Although the H-4 technically will be toast, CBP has the right to parole an alien into the US if the POE believes that this person could be admissible but lacks the required documents. In the case of an H-4 holder with an approved I-485, this is clearly the case. All AP does is give the POE a request from the Director of a USCIS Service Center or District Office to parole the alien; it's ultimately the POE's call no matter what - they can refuse parole even with AP, and grant parole without it. (In practice, the POEs are extremely unlikely to override the Service Centers except in cases of statutory inadmissibility for criminal grounds or the 3/10 years bars, or if the I-485 has been denied while the alien was outside the US).

In the wife's case, I would not be overly concerned. If the husband's I-485 is approved while she is outside the US, she is under no obligation to mention this fact at the POE; if it comes up she should ask to be paroled or for deferred inspection so that she can go to her District Office and get her stamp. That should do the trick.
 
ceejay said:
This sounds like you need to have AP irrespective of valid visa.
Click to expand...

No, it just says that if you have a pending adjustment and leave the US without AP, you may be denied entry (like if you don't have the ability to return in H or L status.)
 
I agree with the Real Canadian. USCIS is making it clear for individuals with I-485 pending and did not talk about people holding other visas. Please check on murthy website as the memo states that this rule does not apply to people holding H-1/H-4 visas.

www.murthy.com
 
I came to US on H1 after I-485 approval. I had valid H1 and had no problem at POE.

Check following link where I have posted details:

http://www.immigrationportal.com/showthread.php?t=147533


rohit_97 said:
Hi,

My wife is travelling to India on 15th of this month and her 485 is in final stage (Jan 2003 filing). She has a valid H4 VISA but she doesn't have AP. Will it be problem for her while returning? We just replied a RFE 2 weeks back and I got a mail on 8th that my response was received on 5th of Nov. Would it be a problem if she gets approved before or after leaving? Kindly suggest. Thanks.
Click to expand...
 
Should not be a problem

If you have a valid VISA you can always come back.. she needs to explain that while leaving the country I485 was not approved ..Note that H4 is tied with H1B..if you or your wife have invoked EAD then better leave on AP..
 
check the www.uscis.gov web site

They have cleared posted a notice on the home page
-----------------------------
Applicants For Adjustment of Status Should Obtain Advance Parole Before Holiday Travel Abroad
Advance Parole is permission to re-enter the U.S. after traveling abroad. Applicants For Adjustment of Status must be approved for Advance Parole before leaving the United States. Read the Press Release. En Espanol.
----------------------------------------

They have not indicated that persons with valid visa are fine to travel...
 
Duel Intent

Ok have you heard about duel intent ? It is possible to move on H1B with AOS pending. This is a well respected law. If you have valid H1B you can leave and come back as many times as you want when AOS ( 485 ) is pending. If you have invoked EAD then you must leave when you have AP.
It is always wise to play safe i.e. have a AP as backup. Fact is you never need to show that AP to the POE officer if H1B stamp is valid.
Lets say you are away on H1B with valid VISA and meanwhile I485 is approved and you have no AP. I have not heard of anyone being deported for this reason and they will admit you after examining the cause.
Read few transcripts of Murthy Chat.

If you leave on AP, scan a copy and keep that in email. In case you loose AP, it is possible to get a Travel Document for one time entry in USA. :p Otherwise you may not be able to enter in US again. AP can be applied when you are in USA.
 
Last edited by a moderator:
Read this article on Immihelp site

http://immihelp.com/gc/aos/ap.html

Adjustment of status applicants whose have used EAD card because their 6 year limit on H/L visa has expired or by working for any other employer other than sponsoring employer are no longer in their non-immigrant status. It allows them to travel abroad and return to the U.S. without a visa.
Any adjustment of status applicant who leaves the U.S. without advanced parole is automatically considered abandoning his/her application for adjustment of status. Such a person will generally not be allowed back in the U.S. The person would have to do consular processing while remaining out of US. This applies traveling to any place outside US, even going to Canada(Even Canadian Niagara Falls) or Mexico or places like Bahamas. (This requirement does not apply to people who have applied to adjust to permanent resident status and are maintaining H/L status.)

Hope this helps
 
You must log in or register to reply here.
Top