Leaving US while application is pending...

[Obelix1]

Leaving US while NIW application is pending...

I am a physician on H1 (J1 waiver). I was planning to go home on vacation, come back in January, and apply for NIW mid-January. However my vacation is postponed till late February or March. Should I wait until I come back in March to send my application? It is my understanding that if I file for NIW and leave the US while my application is pending, it will be considered abandoned and I'll have to start over. Is that right?

 

[hadron]

If you file an I485 and leave without getting advance parole, it is considered abandoned.

The NIW (I140), you could file and leave, there is no penalty against that.

So yes, you should probably wait (or postpone the trip until you have advance parole).

Don't know though how this is treated given that you have an H1b.

 

[ziqch]

I would agree with hadron and suggest that you wait for advacne parole before leaving, you won't need H1 stamped on your passport if you this way. I did the same without any problems.

 

[Obelix1]

Thanks for your replies. Since I am in the first year of my J1 waiver, I really need to keep my H1.

I just found this link...

http://www.garamchai.com/usefulimmigration.htm

... it says that if I use AP to come back, my H1 will be void

I copied the excerpt here (I guess my case would be case 1):

Travel Options after Filing I-485


There are only 2 situations possible for travel after you have filed I-485.
Case 1: You maintain your H1 visa status.
You can travel using your H1 till the validity of your H1. You should also carry your I485 receipt (not a must or requirement but as a precautionary measure). There is no other document required but it's a good idea to keep at least the employment verification document. The officer at the port of entry might ask unexpected questions, you never know.

Case 2: You don't maintain your H1 Status or cannot maintain it (because of 6 year cap) and instead work on EAD.
You need Advance Parole and I485 receipt for re-entry. You do not require EAD for re-entry. However, when you enter USA on Advance Parole then your H1 is automatically void. Now, how will you work if you don't have a valid H1 (it's void because you entered on Advance Parole)? Answer. You will need EAD. So EAD is required for working after you have entered USA on Advance Parole.
NOTE: Once you have entered USA on Advance Parole then you can not go for renewal of your H1. It will be a fresh H1 and will be effected by quota cap.

 

[Intmeddoc]

I am a physician on H1 (J1 waiver). I was planning to go home on vacation, come back in January, and apply for NIW mid-January. However my vacation is postponed till late February or March. Should I wait until I come back in March to send my application? It is my understanding that if I file for NIW and leave the US while my application is pending, it will be considered abandoned and I'll have to start over. Is that right?

Your travel plans should not affect NIW application.

Since you are doing your J-1 waiver, you have to maintain H-1b for first 3 yrs. After 3 yrs, you can travel on AP.

Your option now is to get a H-1 visa stamped in the passport in Canada/Mexico or home country.