Traveled Before AP

[blair231]

Hi,

Traveled and came back before AP approval. Officer let me in without asking any questions.
I read that AOS is abandoned if travel before AP approval.
Please help, what are my options.
If transfer the case to Consular Processing, will this help.
Any suggestions well come.

Thanks.

 

[Tyler77]

Details

Can you give me some details about your situation?
I am thinking to leave before getting the AP (I have to leave). I need every possible help in making the decision.

 

[mmed]

Hi,

Traveled and came back before AP approval. Officer let me in without asking any questions.
I read that AOS is abandoned if travel before AP approval.
Please help, what are my options.
If transfer the case to Consular Processing, will this help.
Any suggestions well come.

Thanks.

If you have valid H stamp you do not need AP at all (either pending, approved, not applied for AP does not matter). On the other hand if you have F, J or many other status, your application for GC will be in great trouble

 

[darren102]

Valid H-1 means you can leave before the approval and come back and you have not deemed your case to be abandoned.

Now H-4 is a different story and they would deem it to be abandoned.

 

[bbqchickenrobot]

Hi,

Traveled and came back before AP approval. Officer let me in without asking any questions.
I read that AOS is abandoned if travel before AP approval.
Please help, what are my options.
If transfer the case to Consular Processing, will this help.
Any suggestions well come.

Thanks.

Where did you travel? At what Port of Entry did the officer let you in? What documents did you show? Did you travel by land, air or sea?

What you read is true... but is not always the case. I have knowledge in this exact situation... trust me... I can give you some help, but you will need to answer the above questions - also, did you have an I-94 with you? What about a machine readable passport?

 

[blair231]

Hi bbqchickenrobot,

Traveled to Canada, entered in Vancouver border by road on TN visa. Officer took passport and did some search and let me go without asking any questions.

 

[bbqchickenrobot]

Did the officer stamp your passport on way back in? Did he scan your passport at all?

I am not a lawyer FYI, you may want to seek advice from one. Just do a small consultation and they can tell you all about your situation. In my opinion, the fact that you are back in the US puts you in a better position than if you were detained or denied at the border. the CIS may not know you have left. In which case, your case may not be considered abandoned. However, they may find out, so it's definitely risky. So you left US to Canada adn then re-entered into US from Canada? When did you file for your AoS and when is your interview for GC?

 

[GCqueries]

Valid H-1 means you can leave before the approval and come back and you have not deemed your case to be abandoned.

Now H-4 is a different story and they would deem it to be abandoned.

darren102,
Why do you say H-4 is a different story? In this regard, I am under the impression that AOS is not abandoned even for a H-4 visa holder if he/she travels out of the country and returns on her H-4.

Can you point to some resource?

 

[jk0274]

GCqueries is correct, an H-4 visa holder (valid) can travel and return without abandoning the AOS application, even if the individual does not hold Advanced Parole.

 

[AmusedAgain]

I just did a business trip to Europe and reentered US. My EAD card and 485 rcpt was with me, but the officer just checked my H-1 stamp (not even I-797). I asked her about EAD etc and she told me that till I've valid H-1, the rest does not matter...

 

[sett]

If you have valid H stamp you do not need AP at all (either pending, approved, not applied for AP does not matter). On the other hand if you have F, J or many other status, your application for GC will be in great trouble

My Wife is in F1 status and we got EAD 's and I485 is pending , I140 is approved

I applied AP to my wife long back at NSC ( 4 months before) I didnt get it untill now , We are planning to go travel outside USA in MAY and returning back on AUG , if she returned back without AP , does 1485 still valid ? Or any issues with GC ?

 

[Troylander]

My Wife is in F1 status and we got EAD 's and I485 is pending , I140 is approved

I applied AP to my wife long back at NSC ( 4 months before) I didnt get it untill now , We are planning to go travel outside USA in MAY and returning back on AUG , if she returned back without AP , does 1485 still valid ? Or any issues with GC ?

Your wife should not travel before the approval of her AP. Her application will be abondened since she filed AP on F1 status.

Only people in H and L status can leave before the approval of AP.
http://www.uscis.gov/files/nativedocuments/AILA_2Apr08.pdf
"we confirm that that abandonment of a pending advance parole application does not occur if the foreign national is otherwise authorized to depart and return because the foreign national has an 1-485 pending and is readmitted as an H-1, H-4, L-1, L-2, K-3, K-4, V-1, V-2, or V-3."

I hope it helps.

 

[Troylander]

I have a question which is a little bit different.
My wife is applying for AOS/AP on L1 status (which is the same as H1 in terms of abondenment etc). She needs to leave US after filing AP and she wants to stay in Canada for couple of month.

Can she come back to US with her AP when AP is approved? Or she has to come back using her L1?

This means that I will mail her approved AP and she will come back here. She is my dependent in 485 appplication and upon her arrival to US using her AP she does not want to continue working for the same company.
On the other hand I will stay at the same job.

Please, please reply to my question,
Thanks,
Troylander

 

[jk0274]

The rule is pretty simple: An AP must be approved before leaving the US for it to be valid for entry to the US. If it wasn't approved when she left, she can't use it to reenter. She has to reenter on her L1, although she can fall out of L1 status after arriving and still be here legally because of the pending I-485.

 

[Troylander]

Hi,
Thanks for the reply.
Can you point me to this rule?
The only thing that I am able to find is this one:

http://www.uscis.gov/portal/site/us...nnel=54519c7755cb9010VgnVCM10000045f3d6a1RCRD

Advance Parole
Most aliens who have pending applications for immigration benefits or for changes in nonimmigrant status need Advance Parole to re-enter the U.S. after traveling abroad. Aliens applying for advance parole on the basis of a pending application for adjustment of status must be approved for advance parole prior to leaving the United States in order to avoid the termination of their pending application for adjustment. Note: this does not apply to aliens who have applied to adjust to permanent resident status and who maintain H-1B (Specialty Worker) or L-1 (Intracompany Transferee) status, or their dependents, who have applied to adjust to permanent resident status and who have valid H-1B or L status and valid visas, V nonimmigrants who have a valid V nonimmigrant visa, are in valid V nonimmigrant status and have or obtain a valid V nonimmigrant visa before applying for readmission to the US, and K-3/4 nonimmigrants who have applied to adjust to permanent resident status and who have a valid K-3/4 nonimmigrant visa, are in valid K-3/4 nonimmigrant status and have or obtain a valid K-3/4 nonimmigrant visa before applying for readmission to the US.



What does this mean? It doesn't say that you can not enter using AP.

Please help me understand my situation.

 

[jk0274]

Troylander,

I responded to you on the other forum where you asked this question a few minutes ago. Also, see this link. Thanks.

 

[Troylander]

Thanks alot jk0274.
I have made two appointments with two different lawyers to verify this.

The rule is very vague. One can assume that they are talking about the return before the approval of advance parole.

Do they check everyone at the port of entry to see if advance parole was issued before or after the last departure?

Anyway I will post the lawyers opinion here. Might be usefule for others too.

How about my other question:
Is applying for AOS right away after coming to US risky? Is tehre any rule in terms of staying here for certain number of days and then apply for AOS?

Thanks alot,
Troylander

 

[jk0274]

I really fail to understand why you still see the rule as "very vague". It's perfectly clear (to me) in both the AILA document you provided as well as the Murthy.com link regarding the same document that I provided above. It is stated that:

"The person must return during the time period permitted under that advance parole that was approved before the person's departure." (Emphasis added)

The same link states explicitly that an AP that was not approved before the alien leaves the US cannot be mailed to the alien for use to return. In your wife's case, this is a moot point, since you say she already has a dual intent visa, so it really doesn't matter if she has an approved AP or not, if I understand correctly.

Since your wife is arriving on a dual-intent visa, she is eligible to apply for AOS (i.e. I-485) without really arousing suspicion. People entering on strictly non-immigrant intent visas such as B, F, or J would arouse this suspicion. So as long as she is physically present in the US on the day the application is received by USCIS, she should be okay to apply. However, remember that the I-485 application requires fingerprints to be taken soon after (not AP or EAD, but I-485 itself). So she may have to be back within a few weeks for that appointment.

 

[Troylander]

Let me first thank you for your replies.


This is the quote from Murthy link:

Previously Approved Advance Parole

The USCIS stated that if a person has an advance parole and applies for a new advance parole while in the United States, s/he may travel and reenter the U.S. using the already approved advance parole. The person must return during the time period permitted under that advance parole that was approved before the person's departure. The USCIS specified that the person cannot remain abroad after the expiration of the first advance parole and then seek to enter on the second one after it is approved.
.

So this is for the case when someone has an advance parole and leaves US. My wife won't stay outside US beyond the expiration of AP. Her application is being processed while she is out.

The same link states explicitly that an AP that was not approved before the alien leaves the US cannot be mailed to the alien for use to return. In your wife's case, this is a moot point, since you say she already has a dual intent visa, so it really doesn't matter if she has an approved AP or not, if I understand correctly.

This the quote from Murthy:
Case Example with Dates
A person has an advance parole that is valid through June 15, 2004. S/He files for a new advance parole on April 15, 2004, while in the U.S. On April 20, 2004, the person learns that s/he must travel abroad immediately. Under the USCIS advisement, the person could leave the U.S. and reenter on the first advance parole through the June 15, 2004 date. The advance parole filed on April 15, 2004 will be valid once it is adjudicated for travel from its approval through its validity date.
It would not be permissible for the person in the example above to depart the United States on April 20, 2004 and remain abroad past June 15, 2004, waiting for the second advance parole in order to reenter the U.S. The person could not have someone send him/her the April 15th advance parole in August 2004 and use it for reentry.

My understanding:
The quote from Murthy link is also for the person who has an advance parole and leaves. Then he has to enter US before the expiration of the first advance parole and can not come back with the second one.

Since your wife is arriving on a dual-intent visa, she is eligible to apply for AOS (i.e. I-485) without really arousing suspicion. People entering on strictly non-immigrant intent visas such as B, F, or J would arouse this suspicion. So as long as she is physically present in the US on the day the application is received by USCIS, she should be okay to apply.

The rule says she can apply for AP and leave US and the application is not abondoned because she left the country on L1. She can come back using her L1 but nowhere says that she can not use AP after the approval.
Now the question is if she loses here job in Canada and can not come back using her L1, can she travel back to US with AP.
This is different from the case that someone is outside of US and AP is expired.

I am concerened about it, because lay offs are possible in the time frame of 6-7 months.

Do you see the point that I am trying to make?

My wife's case is not listed neither in AILA nor in Murthy link.
The only thing they say is: she can apply for AP , leave US on L1 and 131 application is not abondened.
So if it is not abondened, once it is approved, based on what rule they can deny her admission?

The whole point of the argument you had was for someone who stays outside US after the expiration of the first AP. My wife's case is a bit different.


With so many thanks to you for the discussion.

 

[jk0274]

The whole point of the argument you had was for someone who stays outside US after the expiration of the first AP. .

Sorry Troylander but that was not my point at all; you have misunderstood my post. My argument had nothing to do with trying to return to the US with an expired AP.

You are perhaps confused about 2 separate matters:

1- Abandonment of a I-131 application, and separately,

2- Entry to the US with an AP document that was not approved prior to departure.

These are 2 separate matters. What the rule says is that if you apply for I-131 and then leave the US, only to return on a dual-intent visa OR a previously approved AP that you already possess, the pending I-131 will not be abandoned. It will be adjudicated and you will receive your valid AP in the mail. That's one matter.

A completely separate matter is whether you can enter the US using an AP document that was not issued/approved until after you left. This is regardless of what visas you have or what your situation is or how or when you applied for AP. It's a simple rule: For an AP to be used for parole into the US, it must have been approved before your departure from the US.

The first matter pertains to successfully applying for a AP document and obtaining a valid AP for proper use. The second matter, completely independent of the first, pertains to how AP can be used. Of course nobody on these forums is really a lawyer, and also rules are not always enforced at points of entry (i.e. I'm sure people have entered with AP that was mailed to them and sometimes it worked due to officer oversight). But these are the rules as most knowledgeable people on this forum understand them.