Travel after AOS applied?

A

adekhne

Registered Users (C)
Gurus,
Here is my situation:
My PD became current on June 1, 2007.
I will be applying for AOS, EAD, and AP for myself and my wife.
I am on my 7th year extension with a valid H1-B stamp good through December 2007.
My wife is also on her 7th year extension but does not have a valid stamp in her passport. Her latest I-797 approval is good through October 2007.

She has a need to travel to India in July.

I would appreciate if someone could answer these questions for me, and help us understand our options.
Q1. Would it be possible for my wife to travel (and return to the US) on her H1-B based on her situation? Would she need to go through the H1-B revalidation process?
Q2. When, and after what stage/document-in-hand, it at all would she be able to travel?

Thanks.
 
1. You must have an approved AP before you travel. The only exception is if you are in valid H-1B (or H-4) status. Your wife is very unlikely to get her AP approved in a month. Therefore, she can only travel if she is eligible to renew her H visa in India. If she is, she would need to go through the regular visa route (schedule an interview at the consulate in advance, possible wait time, etc) and return on her new H visa. Even if her AP is approved while she is in India, she should NOT use it to come back to the United States, as she left the US before it was approved.

2. She can travel if a- she has her advanced parole document in hand, or b- she plans to renew her H visa in India (and is eligible to do so and is ready to submit to possible wait times).
 
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If travelling back with H1/H4 visa, she will also need the original I-485 filing reciept (though she does not need the AP document).

Here is the USCIS law about H1/H4 traveling abroad while 485 is pending:
Source:
http://www.uscis.gov/propub/template.htm?view=document&doc_action=sethitdoc&doc_hit=1&doc_searchcontext=jump&s_context=jump&s_action=newSearch&s_method=applyFilter&s_fieldSearch=nxthomecollectionid|slb&s_fieldSearch=foliodestination|8cfrsec2452a4&s_type=all&hash=0-0-0-15849

"..................................
(B) The travel outside of the United States by an applicant for adjustment who is not under exclusion, deportation, or removal proceedings shall not be deemed an abandonment of the application if he or she was previously granted advance parole by the Service for such absences, and was inspected and paroled upon returning to the United States. If the adjustment of status application of such individual is subsequently denied, he or she will be treated as an applicant for admission, and subject to the provisio ns of section 212 and 235 of the Act.

(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) and the original I-797 receipt notice for the application for adjustment of status. 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-4 or L-2 status shall not be deemed an abandonment of the application if the spouse or parent of such alien through whom the H-4 or L-2 status was obtained is maintaining H-1 or L-1 status and the alien remains otherwise eligible for H-4 or L-2 sta tus, and, the alien is in possession of a valid H-4 or L-2 visa (if required) and the original copy of the I-797 receipt notice for the application for adjustment of status. 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 K-3 or K-4 status shall not be deemed an abandonment of the application if, upon returning to this country, the alien is in possession of a valid K-3 or K-4 visa and remain s eligible for K-3 or K-4 status. (Amended 8/14/01; 66 FR 42587 ) (Revised effective 4/1/97; 62 FR 10312 )
........"
 
Thanks guys.

Thank you so much.
This should help us decide whether to take a chance to get the H1 re-validated in India or to wait until EAD, and AP are approved and then travel safely later.
Cheers!
 
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