Transfer to India while awaiting I-485 approval

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gctechie

Registered Users (C)
Hi Gurus,

Here is the situation - Iam currently awaiting I-485 approval, ( along with my wife) receipt date being October 21 , 2003. Iam expecting to get my EAD after my 90 days are up, ie Jan 21 , 2003. I have also applied for AP. Now my company wants to transfer me to India for the time being, they are willing to continue my GC process. I have a valid H1 visa till 2005 end.

1. What are my options? AC-21 is out of the question since its not yet 180 days from filing for I-485. On what basis would my employer continue my GC since iam no longer working in the US? Would it be treated as an intra-company "transfer"?

2. Is there any problem with remaining in the US without pay from my company, while still being on their payroll, so that i can remain in the US till my wife finishes her studies, ie in May? Can this be done, will it affect my GC process?

3. What could be the problems if i return to India ( using my H1 ) while my I-485 is being processed? Is there any rule regarding stay outside US while 485 approval is pending. Would i be able to return back to US using my valid H1 at any time? Do i have to carry AP with me?

4.If my employer decides to cancel my H1 visa while i was in India, will it affect my return back to US or my GC process?

5. How is FP initmated, is it online & through letter , both.

6. My wife might stay back in the US at the same address, so i dont need to file any change of address even if i move to India?

Any answers will be greatly appreciated! Thanks!
 
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Is your employer going to continue paying the same salary? i.e. will you still be paid the same US Dollors, while you will be working in India, as you are getting paid right now?

How long does your employer want you to work in India?

1. You need to ask your employer if it is an intra-company transfer or you are going to be on a seperate pay-roll and seperate company.

2. I know a friend who was on bench for few months while he was on H1, and his lawyer told him that if you are getting less money then what is mentioned in your H1 application than you and your company is in violation of H1 agreements. Then again his lawyer is stupid too, so I won't be surprise if he is wrong.

3. You can always come back on H1, if you still have the same job and are working for the same company. Ofcourse you need to have a valid H1 visa stamp on your passport.

4. If your employer cancells your H1 while in India, you can always come back on AP and use AC21 to get a new job. However, your employer should not withdraw/cancell your I-140 before 180 days.

5. I am pretty sure that you can get your Finger Prints at the US Consulate in India.

6. I wouldn't worry about filling a change of address if your wife is going to be there.
 
Originally posted by guju


5. I am pretty sure that you can get your Finger Prints at the US Consulate in India.
Click to expand...
Do you know any one who has done this? Or any documents.
 
Nope I don't know anyone who has done it, but if you search in the posts, I had read it somewhere, and also if you read on the consulate's website, they say on there that they take finger prints.

Off hand i cannot remember what post or location on the website it is.
 
Hi guju, thanks for answering!

No, my employer is not going to pay me in dollars, it will be in rupees & wont be comparable to my US salary.

My employer has not specified a time period, so iam assuming it will be for quite some time.

So do i have to get AP before i move to India? or do i have some grace period after my H1 is cancelled in which i can return?

Also since my wife will be in the US, she should be getting the FP notice by mail, so i should be able to return back to US for FP using my H1?

Is there anyway my employer can prevent my return to US?
 
I believe that you have to be physically present in US to apply for AP. Also you should not leave US before you get your AP.
AP is valid for only one year, so after it expires, and when you need a new AP, you will again have to be present in US to apply for one and wait in US till you get another one.

You can apply for AP whenever you want, now or when your H1 expires, or a year after your H1 expires. It is your choice. Just make sure that you are in US while applying for AP and don't leave US without an AP or valid H1 visa.

The only way your employer can prevent you from comming back in US is if he cancells/withdraws I-140 before 180 days. After 180 days, you can use AC21 and re-enter on AP.

If you are not going to use AP, and since you have a valid H1 till end of 2005, you can use your H1 to re-enter US. However, if your employer decides to cancel your H1, then you will not be able to use that H1 to re-enter US, and you will need an AP, or an H1 from some other employer to re-enter US.

What I am concerned about is, when your 485 approval is approaching, and if you get RFE'ed for pay stubs and tax returns, what will you show USCIS for the time you were working in India? Since you will not be getting US dollars. I know that 485 is for a future job, but if you search the posts, you will see that lot of people have been RFE'ed for their current paystubs and tax returns.

I would suggest that you contact a lawyer regarding this, and don't go entirely by my words.
 
Originally posted by guju
What I am concerned about is, when your 485 approval is approaching, and if you get RFE'ed for pay stubs and tax returns, what will you show USCIS for the time you were working in India? Since you will not be getting US dollars.
Click to expand...

USCIS typically issues RFEs for tax returns and paystubs to ensure that you were getting paid and not working for any companies you didn't have work authorization for.

If you were in India, you show whatever you got when you were working there, and indicate you weren't in the US at the time. Problem solved.
 
Is there any restriction on the time i can remain outside US while I-485 approval is pending? If i have a valid H1 can i renenter US say 1 year after i have been working in India? If i have AP, how long can i stay in India before iam required to come back to US?

Another question i had was if i have been on bench ( ie not laid off, but without salary ) , would there be a problem during 485 approval ? Would i be needed to show paystubs for lets say the 2 months i have been on bench. What is the minimum time i could stay without work ? Would this be ok if i have an EAD?

If you were in India, you show whatever you got when you were working there, and indicate you weren't in the US at the time. Problem solved.

Even if its say for 1 year, there wouldnt be any problems?
 
AP Renewal when One is Present Outside US

>I believe that you have to be physically present in US to apply >for AP. Also you should not leave US before you get your AP.
>AP is valid for only one year, so after it expires, and when you >need a new AP, you will again have to be present in US to apply >for one and wait in US till you get another one.

Hi Guju,
Do we need to Present in US to Renew AP. If someone visit Outside the US (say 4 months)before AP Expiration, if he handed over the AP Renewal to his Attorney, & If Attorney files AP renewal 6 to 5 before the Actual AP Expires, IT is Possible????

Please give more idea abt this

Thx
SAnk
 
Hello sank,

I have gathered my knowledge for this subject by reading various posts in the past.

From what I have learned, you have to be in US when you apply for AP and you have to be present in US when your AP is approved.

After reading your posts, I believe it is ridiculus because lot of people would need to travel during the end of their AP, and they would just come back in USA right before the AP expires, and since it takes lot of time for a new AP, they won't be able to make travel arrangments again.

I would suggest that you apply for Emergency AP after you come back to US.
 
Hi Guju,
My Actual Question is if One is present outside after AP Expiration, & Has filed AP renewal . In that case, if someone has sent new AP (after approval)to his Outside US State, He can use that AP to return to US even after old AP Expiration.

Thx
sank
 
I believe the answer to that is no, you cannot have your AP mailled to you while you are out of US, and then use it.
 
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