Leaving the US after submitting application to adjust status

F

fivebells

Registered Users (C)
If I already have a valid immigration status in the US, is it advisable to leave the US while waiting for USCIS to process a I-130/I-485 application for adjustment of status?

My wife and I married in October, and I am getting my paperwork together to apply for a green card. My mother is dying of cancer back in Australia, and I need to go back there for an indefinite period to take care of her.

I have been legally present in the US on an H1B for a couple of years. I have a current H1B visa stamp in my passport, which expires in June. (So does the H1B immigration status, but I could still extend it by a couple of years.)

I have received contradictory information about whether it is advisable to leave the US during the application for the green card. On the one hand, Bray's Fiance and Marriage Visas says
You can travel, but must use great care. If you simply get up and go without getting official permission, the law says you will have given up (or abandoned, in USCIS terminology) your adjustment of status application. You will need to start all over.
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It goes on to explain how to get Advance Parole. The trouble is that I'm leaving the country on Dec 20, which will probably make getting Advance Parole tricky. On the other hand, a consultant at the International Students and Scholars Office at the university where I'm working told me that this does not apply to me, because I already have valid visa status in the US. I would like this to be true, because I gather that applying for the green card from overseas will take a lot longer. However, I don't know what the truth is, and don't know where to start looking. I would be grateful for any pointers to the relevant laws and regulations.
 
Sorry to read about your mother's battle with cancer. Here is a solution, if you haven't submitted the paperwork for the green card, DON'T SEND THEM because as soon as you leave the US without advance parole, your green card application is considered abandoned and will be denied. However, since your H1B visa is still valid, USE it to head down under until your mother's situation is resolved, hopefully some recovery because I read cancer cases are difficult.

If you already mailed your forms, then make an info pass with your local USCIS office, head there and see if they can process your advance parole on the same day or within a couple of days, because if you leave without the advance parole, you would have thrown your hard earned $1500 filing fees in the toilet.
 
Thanks for the advice, Al. Are there regulations in writing which imply that I will automatically be considered to have abandoned my application, or is this just the de facto USCIS policy? It would be nice to see the regulations, since I have contradictory advice at this stage. (But I will probably end up doing as you suggest anyway.)
 
If you have an H or L, you can leave the US without Advance Parole and your I-485 will NOT be considered abandoned. This has been USCIS regulation for only about a decade or so.
 
TheRealCanadian said:
If you have an H or L, you can leave the US without Advance Parole and your I-485 will NOT be considered abandoned. This has been USCIS regulation for only about a decade or so.
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Fivebells,

Have you submitted your green card forms already? If not, then don't submit them because your trip could last for a long period of time. Once you file your forms, you will need to be present to do finger prints which is required for your green card, so if you are in Australia, how can you do this?

I think you can go with the advice of the "The Fake Canadian", he is usually correct 93.9% of the time...:) If you already filed, then leave with your H1B visa.
 
Thanks, Canadian. Your language gave me some keywords to search for, and I found a lot of web pages which seem to corroborate your view. In particular, if you google for "site:gov h-1-b advance-parole", the top two pages below seem like corroboration from the horse's mouth (the forum system won't let me post actual URLs, because I'm a noob.) Is there a canonical place to look this kind of policy up, like a section of the CFR?
 
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fivebells said:
Thanks, Canadian. Your language gave me some keywords to search for, and I found a lot of web pages which seem to corroborate your view. In particular, if you google for "site:gov h-1-b advance-parole", the top two pages below seem like corroboration from the horse's mouth (the forum system won't let me post actual URLs, because I'm a noob.) Is there a canonical place to look this kind of policy up, like a section of the CFR?
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If you can send a message to someone on the forum, send it Big Joe, he will find the section you are looking for, he's a guru of USCIS administrative law, in terms of finding and posting the entire section. Yes, newbie aren't allowed to attach links. As I said, The Fake Canadian is usually right and he's a trustworthy fellow
 
Looks like the relevant regulation is 8 CFR 245.2(a)(4)(C)
The travel outside of the United States by an applicant for adjustment of status who is not under exclusion, deportation, or removal proceeding and who is in lawful H-1 or L-1 status shall not be deemed an abandonment of the application if, upon returning to this country, the alien remains eligible for H or L status, is coming to resume employment with the same employer for whom he or she had previously been authorized to work as an H-1 or L-1 nonimmigrant, and, is in possession of a valid H or L visa ( if required).
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Thanks for your help, guys.
 
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Also take a look at INA 214

(b) Every alien (other than a nonimmigrant described in subparagraph (L) or (V) of section 101(a)(15), and other than a nonimmigrant described in any provision of section 101(a)(15)(H)(i) except subclause (b1) of such section) shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status under section 101(a)(15) . An alien who is an officer or employee of any foreign government or of any international organization entitled to enjoy privileges, exemptions, and immunities under the International Organizations Immunities Act [22 U.S.C. 288, note], or an alien who is the attendant, servant, employee, or member of the immediate family of any such alien shall not be entitled to apply for or receive an immigrant visa, or to enter the United States as an immigrant unless he executes a written waiver in the same form and substance as is prescribed by section 247(b).

The bolded section is you, you have a statutory dual intent so you can be both a nonimmigrant and seek immigrant status at the same time.

The trickiest part of your situation is the required fingerprinting a short time after filing for adjustment of status. If you could wait 3 weeks or so before departing or come back after a month or so you could file sooner OR you could put off filing until after your trip home. It's so hard to decide how to proceed in these situations, I know.
 
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Thanks, BigJoe. I will give the NCSC a call today and see whether there is any way around the finger printing requirement. After all, they already have my fingerprints from when I applied for a new H-1B visa stamp in July.
 
It is true that you can leave the US after I-485 filing if you have a valid H1B (or H4 or L1 or L2), and your I-485 will be kept alive.

However, you absolutely cannot circumvent the fingerprinting requirement. Unless you don't have fingers. Doesn't matter if you already gave fingerprints 100 times for other processes.

Given your need to stay abroad indefinitely (will your employer hold your job for that long?), in your case it would be better to file the I-130 with consular processing selected for question 22; don't file the I-485. That way, the fingerprinting, medical, and interview for the green card will be done in Australia, if you are still there 6-9 months from now. If you use the H1B to return to the US before the consulate is ready for your green card interview, you can file the I-485 after you return.
 
Is there any way I can get the fingerprinting deferred until my (undetermined) return to the US?

Edit: I believe that the problem below was caused by me calling them with Skype, which presents no phone number to the caller-ID system. Calling from my cell phone with a MO phone number got me in touch with a human.
The NCSC promises customer service representatives Mon-Fri 8 a.m. to 6 p.m., local time, which is now. But there seem to be no options in the phone tree at the moment which lead to a conversation with a human. (E.g., pressing 3 to announce a change of address leads to a promise of talking to someone, but at the end of the message, it says to call back between 8 a.m. and 6 p.m. if you want to talk to someone, which is now.)
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fivebells said:
Is there any way I can get the fingerprinting deferred until my (undetermined) return to the US?
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When the FP notice arrives, it will have instructions on how to request a reschedule. However, they usually don't honor requests for specific date ranges; they set the new date on their convenience, which could be anywhere from 1 month later to more than 3 months later. And you're not in a position to give them a specific date range, even if they'd honor your requests.

Face the facts: I-485 just doesn't make sense for your situation, at least not yet. Remember it's not just the fingerprinting you have to worry about; there is an interview after that. And have you even done the medical yet? If you haven't already gone for the first medical appointment, you're almost surely not going to be able to complete both appointments and get the results and have USCIS receive the application package before you leave on the 20th.

Forget about the I-485 for now; have your wife file the I-130 without the I-485, choosing the most convenient consulate in Australia for Q22 of the I-130. If the consulate is ready for you while you're still there, complete the formalities in Australia (your wife doesn't need to attend the consular interview). Otherwise, file the I-485 when you return to the US.
 
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Thanks for the advice, Jackolantern. The problem is, my current H-1B status runs out in June. I can get my H-1B status updated by my university, but then I think I have to pay for the green card myself... If I don't start either the H-1B update or the I-485 process soon, I won't be able to work.

I have done the medical, yes.
 
Get the university to apply for your H1B extension. So if you don't get the consular green card interview by June, you can interview to get your H1B renewed at the consulate.

And if you complete the consular green card interview in time, you'll be able to return to the US with permanent resident status. The university is not going to complain that you came back to them with a green card instead of the H1B.
 
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If you are still determined to pursue the I-485 process rather than complete the GC process thru the consulate, do these things:

1. Make sure the I-485 application package is delivered to USCIS before you leave the US. That means it should arrive there by this Friday. Otherwise they will deny the I-485 once they realize you were outside the US when they received it.

2. Have the university apply to extend your H1B. In case the GC process extends beyond June, you will need a renewed H1B because of the lack of Advance Parole.

3. Make a short visit back to the US for fingerprinting.

4. Make a short visit back to the US for the I-485 interview. Apply for a new H1B visa at the consulate if necessary.

Of course, #3 and #4 are very expensive, and the scheduling of them is out of your control. And whether you pursue I-485 or consular green card processing, you still need to have the university file an H1B extension. I don't see why you think the I-485 route is better for your situation.
 
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Thanks, Jackolantern. I just talked to a consultant at the ISSO, and they agree with you that I should defer applying for the green card until my return from Australia. She thinks that even if I don't have the work permit from the I-485 by the time the H-1B expires, they will be able to extend my I-9 (presumably because the I-485 is in process?) Her words were "You're gonna be fine, no matter what."

I'm grateful for the advice you've all given.
 
fivebells said:
Thanks, Jackolantern. I just talked to a consultant at the ISSO, and they agree with you that I should defer applying for the green card until my return from Australia.
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Don't defer the whole green card application; file the I-130 now, but defer the I-485 and its associated paperwork (I-765, I-693 medical, etc.). If you return to live in the US before the consulate is ready to interview you for the GC, file the I-485 when you return. The medical can be done up to 12 months in advance, so you shouldn't need to redo it if you return by the middle of next year.

And if the consulate is ready to interview you for the GC while you're still there in Australia, the I-485 becomes unnecessary.
 
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