Is Overseas travel safe with a pending I-485 and pending AP with an expired H1B visa?

T

txaggie

Registered Users (C)
Immigration Gurus,

I am on my 9th year of H1-B with validity till 02/14/2008. My most latest H1B visa in my passport expired back in Feb, 2005. My employer's attorney filed for my I-485 and I-140 concurrently (along with Advanced Parole and EAD) 11/15/2006. The I-140 has been approved; but the Advanced Parole is still pending. Is it safe for me to travel out of the US and apply for H1-B visa in a US Embassy in my home country and return to the US with the H1-B approval notice and the H1B I obtained from the Embassy? Wy wife is on an H4 and would be accompanying me. Could there be any problems with obtaining the H1-B visa while overseas because the AP/AOS is pending?

Please advise.
 
txaggie said:
Could there be any problems with obtaining the H1-B visa while overseas because the AP/AOS is pending?
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The mere fact that you have a pending I-485 is not grounds for denial of an H-1 visa stamp. I would however, be concerned that if your visa stamp is denied for any reason (like insufficient documentation) then you will be stuck outside the US and unable to return until that deficiency is rectified.
 
What about the pending AP? Does it stay pending or is it cancelled when you leave the country? If txaggie's H1-B is denied or delayed then can he receive his approved AP and travel back to US on that?
 
a101 said:
What about the pending AP? Does it stay pending or is it cancelled when you leave the country? If txaggie's H1-B is denied or delayed then can he receive his approved AP and travel back to US on that?
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AP has to be approved before traveling away from US.
 
txaggie said:
Immigration Gurus,

I am on my 9th year of H1-B with validity till 02/14/2008. My most latest H1B visa in my passport expired back in Feb, 2005. My employer's attorney filed for my I-485 and I-140 concurrently (along with Advanced Parole and EAD) 11/15/2006. The I-140 has been approved; but the Advanced Parole is still pending. Is it safe for me to travel out of the US and apply for H1-B visa in a US Embassy in my home country and return to the US with the H1-B approval notice and the H1B I obtained from the Embassy? Wy wife is on an H4 and would be accompanying me. Could there be any problems with obtaining the H1-B visa while overseas because the AP/AOS is pending?

Please advise.
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------------- better get AP approved in hand before yopu go out so that if any problem for H1 stamp you can use AP. better also your wife get her AP approved in hand before go out so that in any problem for H4 stamp she can use AP
 
Thank you all for your responses.
Is it true that, strictly speaking, if a Adjustment of Status/Advanced Parole applicant leaves the US without advance parole or a valid visa, their AOS is considered automatically abandoned? I guess the USCIS does not seem to be enforcing this, but has the right to enforce it if they choose to do so?

So, I understand it is wise to hold off on travelling till AP is approved.

Hence for a person with a pending I-485 application, does it make any sense to get an H1B visa stamping done when travelling thereafter with an approved AP, or isn't an approved AP sufficient to get back into the US? What are the pros and cons of going either way(getting/not getting H1B stamping) or is it even a choice(as opposed to a requirement) that H1B visa should be present ?

Please let me know.
 
txaggie said:
Is it true that, strictly speaking, if a Adjustment of Status/Advanced Parole applicant leaves the US without advance parole or a valid visa, their AOS is considered automatically abandoned? I guess the USCIS does not seem to be enforcing this, but has the right to enforce it if they choose to do so?
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I am somewhat skeptical about this, since there are some aliens (like myself) who were visa-exempt; we could travel outside the US without AP or a valid H/L visa and merely needed to show our I-797 at the POE to be readmitted.

Hence for a person with a pending I-485 application, does it make any sense to get an H1B visa stamping done when travelling thereafter with an approved AP, or isn't an approved AP sufficient to get back into the US?
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If you have dependents who you wish to bring to the US in H-4/L-2 status, the visa stamp becomes important. I am unsure what would happen if you arrived at the POE with AP and your spouse/children had an H-4; if the POE would admit them.
 
txaggie said:
Thank you all for your responses.
... ...
Hence for a person with a pending I-485 application, does it make any sense to get an H1B visa stamping done when travelling thereafter with an approved AP, or isn't an approved AP sufficient to get back into the US? What are the pros and cons of going either way(getting/not getting H1B stamping) or is it even a choice(as opposed to a requirement) that H1B visa should be present ?
... ...
Click to expand...
Getting a visa stamp and entering US with that visa--even if you have a valid AP--gives you the benefit of maintaining your non-immigrant status. This way, if your 485 is denied for some reason (there are many reasons for this), you'll still be able to stay and work legally in US while you're appealing the denial.

If you use AP for reentry, you'll lose your non-immigrant status and become solely dependent on the pending 485. If it is denied, your stay in US will become instantly illegal on the day of the denial and you have to leave the country right away, unless you have another non-immigrant status to fall back on (e.g. H-4).

I was told by a company lawyer that, technically, if you enter US with AP but continue your employment with the same employer, you'll still be able to maintain your H-1 status, but you'll then have to revalidate that status by applying for a new H-1 or something like that. --Don't quote me on this. It's been more than 2 years since that talk and I'm not sure about the details.
 
txaggie,

I am also in same boat...

Our current visa expired and we have valid H1/H4 until March 2009, recently applied for 140/485/EAD/AP and waiting for receipts.

Initially we had a plan to leave for India in this week, but postponed trip to February and waiting for AP approval now. We are not planning to use AP for reentry, we want to use it as backup in case of any probelms in H1/H4 visa renewel.

I am planning to stay on h1 as long as I can, with out using EAD/AP.

-SR
 
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