Travelling w/o AP

R

raindance

New Member
I received my AP yesterday ( applied in April). However, I do not have the AP for my wife. But, she has to go to India for some urgent work. How will she be able to come back, since she does not have an AP.

Please help.

PS: I intend to apply for her AP by the end of this week.
 
If she has maintained her H-4 (neither one of you have worked on EAD), then:

a) If she has a valid, unexpired H-4 stamp in her passport, there is no problem. She would show the H-4 stamp along with I-485 receipt at POE and will be admitted in H-4 status.

b) If she does not have a valid, unexpired H-4 stamp in the passport, then you would want to make an appointment for her in a US Consulate in whatever place she travels to (or better make it the place of your last residence abroad). There she will obtain a fresh H-4 stamp and you already have a solution for this kind of problem (see (a)).

If she did not maintain her H-4 status by either of you working on EAD, then there is no way for her to get back. Advance Parole must be obtained before leaving the country. However there are references that AP can be obtained from INS while abroad, I doubt that you will be able to do that.

If getting an Emergency Advance Parole is not an option, then your spouse will be abandoning her AOS just by leaving the country without AP and having no dual-intent visa at hand. However, she will be able to get her Green Card after you get yours and she applies for one in a US Consulate using the follow-to-join procedure.

This will be a lengthy wait, I might add. Not recommended.
 
If it is urgent work then apply for Emergency AP.

If she is ELIGIBLE to travel on H4, then she possibly can keeping BitterMan's point a. in mind. She HAS TO SHOW her original 485 receipt while entering the country in case she travels on H4!
 
140,

Why she need to show 485 receipt if she is traveling on H4, lets say if she did not had filed 485 application then what ?
If she travels on AP then yes she will have to show 485 receipt but why in case of H4 ?
 
In oder to enter on AP, no I-485 receipt (neither original nor a copy) is really required. An immigration officer at POE may ask for it, at his/her discretion, but whether you produce it or not should not really matter.

As for entering on a dual-intent visa, producing I-485 receipt indicates that you are not willing to abandon your pending AOS application. Nothing bad may not happen even if you don't show the receipt, but a reasonable rerson would not bet on it. Show the receipt and be off on your way.

As for the originality of the I-485 receipt, AFAIR we have established this knowledge some time ago. I do not remember exactly where it came from, but I'm sure it was a reliable source.
 
Applying for emergency AP

How do I apply for an Emergency AP ? What is the eligibility for the same ? Any pointers. Please let me know.




Originally posted by BitterMan
If she has maintained her H-4 (neither one of you have worked on EAD), then:

a) If she has a valid, unexpired H-4 stamp in her passport, there is no problem. She would show the H-4 stamp along with I-485 receipt at POE and will be admitted in H-4 status.

b) If she does not have a valid, unexpired H-4 stamp in the passport, then you would want to make an appointment for her in a US Consulate in whatever place she travels to (or better make it the place of your last residence abroad). There she will obtain a fresh H-4 stamp and you already have a solution for this kind of problem (see (a)).

If she did not maintain her H-4 status by either of you working on EAD, then there is no way for her to get back. Advance Parole must be obtained before leaving the country. However there are references that AP can be obtained from INS while abroad, I doubt that you will be able to do that.

If getting an Emergency Advance Parole is not an option, then your spouse will be abandoning her AOS just by leaving the country without AP and having no dual-intent visa at hand. However, she will be able to get her Green Card after you get yours and she applies for one in a US Consulate using the follow-to-join procedure.

This will be a lengthy wait, I might add. Not recommended.
Click to expand...
 
My friend had to leave for India on a family emergency when her AP was valid for another 10 days or so. So, in effect, her AP expired while she was in India.

Her husband applied for AP for both of them, he got his AP, he got an RFE for his wife and that was for their Marriage certificate. He has sent the response for the RFE and awaiting her AP.

We are hoping that she would get her AP afterwhich her husband can make a trip to India and bring her along with him.

I can keep you posted on what actually happened with her once she comes back. But before that, do any of you know of any case where a situation like this has caused problems?

Please note that she does not have a valid H4.
 
Originally posted by BitterMan
As for entering on a dual-intent visa, producing I-485 receipt indicates that you are not willing to abandon your pending AOS application. Nothing bad may not happen even if you don't show the receipt, but a reasonable rerson would not bet on it. Show the receipt and be off on your way.
Click to expand...

Why do you believe that this is necessary? As well, why do you believe that leaving without AP abandons the AOS? It does not - but unless you can get back into the US, the adjustment is shot.

I have re-entered the US numerous times just on my H-1 approval notice, and never mentioned that I had a pending I-485. No one ever cared.
 
harac,

it is my understanding that the AP application should be denied under these circumstances. Your friend will have to wait abroad until her husband gets his Green Card so she could apply for her Green Card in a US Consulate. If her husband is the primary applicant for AOS, that is. If he is not and she is, then the AOS will collapse for the whole family.

If AP will be approved, it may get even uglier. Upon attempt to re-enter using the newly issued AP, she will be identified as abandoned AOS and therefore AP invalid. Which amounts to an attempt to enter the country illegally without proper documentation and subject to removal proceedings. With a removal (in other words - deportation) on her record she may experience certain difficulties getting her Green Card in a US Consulate abroad later on.

A family emergency, properly documented, should most likely qualify for an Emergency Advance Parole. That is what she was supposed to get before departure.

At this point, my advice is to contact an immigration attorney, who will, provided extensive knowledge of the facts surrounding their case, give a better advice.
 
TheRealCanadian,

Why do you believe that this is necessary? As well, why do you believe that leaving without AP abandons the AOS? It does not - but unless you can get back into the US, the adjustment is shot.

That is an incorrect statement. See http://www.immigration.gov/graphics/services/Emergency/index.htm#Advanced.

The FAQ referenced explicitly states that ...Aliens in the United States should, prior to departure, obtain Advance Parole in order to re-enter the United States after travel abroad...

Also, if while you are abroad and in posession of a valid, unexpired AP your AOS gets approved, you still can enter the States and get your Green Card. But only if you have an AP, because H- and L- visas will not work anymore.

I have re-entered the US numerous times just on my H-1 approval notice, and never mentioned that I had a pending I-485. No one ever cared.

Perhaps, 140_takes_4ever can clarify this question further.
 
TheRealCanadian,

H1 approval notice does not mean you have valid VISA, you need to have valid un-expired VISA on your passport and in past you have done this but not any more.

As far as question about having AP while your H1 VISA is valid on passport ?
I don't think it is necessary.

harac,

your friend's wife is safe since when she left US she was having valid AP and while coming back she need to have valid AP which she will be getting sooner or later.

Per instruction from I-131 form

"Another person who is on the U.S may file this application in your behalf. He or she should complete Part 1 with information about himself or herself."
 
Originally posted by vipsha
H1 approval notice does not mean you have valid VISA, you need to have valid un-expired VISA on your passport and in past you have done this but not any more.

As far as question about having AP while your H1 VISA is valid on passport ?
I don't think it is necessary.
Click to expand...

So true.

Originally posted by vipsha
your friend's wife is safe since when she left US she was having valid AP and while coming back she need to have valid AP which she will be getting sooner or later.

Per instruction from I-131 form

"Another person who is on the U.S may file this application in your behalf. He or she should complete Part 1 with information about himself or herself."
Click to expand...

I disagree with your interpretation. The quoted paragraph was taken out of a certain context, which implies a different meaning. Specifically,

Advance Parole Document.

If you are outside the United States and must travel to the United States temporarily for emergent business or personal reasons, you may apply for an advance parole document to be paroled into the U.S. on humanitarian grounds if you cannot obtain the necessary visa and any required waiver of excludability. Parole cannot be used to circumvent normal visa issuing procedures, and is not a means to bypass delays in visa issuance. Parole is an extraordinary measure, sparingly used to bring an otherwise inadmissible alien into the U.S. for a temporary period of time due to a very compelling emergency.

In my interpretation it means that there is no way a normal person can obtain such a document. If someone had a family emergency and had to leave the States without an advance parole, then... tough luck. The paragraph above does not apply.

Then comes the paragraph you quoted:

Another person who is on the U.S may file this application in your behalf. He or she should complete Part 1 with information about himself or herself.

In my interpretation it means that a lawyer (generally, it would be a lawyer, considering the circumstances in which such an advance parole could be issued), while being in the U.S. can actually file I-131 on other person's behalf.

Furthermore, we have the following:

Effect on Travel Before the Travel Document is Issued.

Departure from the United States before a decision is made on an application for a reentry permit or refugee travel document does not affect the application. Departure from the United States or application for admission to the United States before a decision is made on an application for an advance parole document shall be deemed an abandonment of the application.

In my interpretation it means that one should not leave while an application for AP is pending, because it will render the application abandoned and it will be denied down the line.

And the last, but not least...

8 CFR PART 212

Sec. 212.5 Parole of aliens into the United States

...

(c) ... An alien who arrives at a port-of-entry and applies for parole into the United States for the sole purpose of seeking adjustment of status under section 245A of the Act, without benefit of advance authorization as described in paragraph (f) of this section shall be denied parole and detained for removal in accordance with the provisions of § 235.3(b) or (c) of this chapter...

...

(f) Advance authorization. When parole is authorized for an alien who will travel to the United States without a visa, the alien shall be issued Form I - 512.

In my interpretation it means that an advance parole document must be obtained before leaving the States. Otherwise, an attempt to apply for admission will result in removal proceedings (A.K.A. deportation).

***

That's it. I hope, I've got it clear this time ;)
 
Hello bitter man, real canadian and others.
You may travel on H1B or other visa as long as this status is valid. I didn't have a stamp on my passport, therefore I didn't want to risk not getting one in the embassy back home, however if I would have a actual H1B stamp in my passport, I could freely travel even if I have pending 485. That's at least what my lawyer told me. Check in with yours. By the way, questions like this are pretty easy to ask any reputable law firm, even if you are not their client.
 
There is some slight confusion going on here, so to clear up any misunderstanding from my comments:
1. While you can enter the country on H1/H4 (while you are under AOS) without showing your original 485, there is a chance that case can be marked for abandonment since you are entering on an non-immigrant visa while undergoing AOS! You may have gotten away with it a couple of times, but I wouldn't really play Russian roulette with my 485 application. According to my lawyer the immigration officer has the liberty to mark your case as and how he pleases when you enter. Entering on AP just reduces the chances of errors.

2. Entering on H1 receipt! I don't buy that BS! The H1 receipt clearly mentions that it is not an entry permit. You CANNOT enter the US unless you have an valid entry document which is either a Visa/AP.

3. With Regards to harac, I am sorry to say but I have to go with Bitterman on this one! When the AP expires you cannot travel on it. No matter the fact that she gets a new one issued while she is out of the country. You HAVE to travel on an unexpired AP to maintain status! The best thing to do in this case would be to apply for H1/4 in case she hasn't worked on EAD already. Failing which she will have to wait till her husband gets his GC and then files a follow to join.
 
Thank you BitterMan, Vipsha and 140_takes_forever for your response.


I checked with my company lawyer and unfortunately he also said the same thing as BitterMan.

I have passed on the info to my friend. I shall keep you posted on how this turns out.

Thanks once again.
 
AP Pending (H4 visa valid)

Hi Guys,
My wife has applied for AP in May 2003 and it's pending. She has valid H4 VISA stamp till 11/06/2003. Today She left for India for 3-4 months vacation on H4 Visa.
Will there be any problem if she come to US on AP after 11/06/2003 b'cas she left US when AP is pending ? Shall I ask her to come before her H4 VISA expires ?

Your help is really appreciated. I am getting confused b'cas of various openions on AP usage..

Regards,
 
SAI4567,

she must come back on her H-4, before the stamp in her passport expires. Since she has left the country while her I-131 was pending, the I-131 will be deemed abandoned, and therefore never approved. H-4 remains the only means to return to the States.
 
Offcourse she needs her original 485 to show at the port of entry to ensure her AOS is not marked for abandonment.

I am a little curious as to know what part of the above thread was ambiguous WRT AP usage? This seems more a desire to be spoon fed as compared to any real ambiguity in opinions expressed in the thread. Besides I am surprised you are taking advice from people who have no legal background as compared to asking your lawyer for clarification!


Originally posted by BitterMan
SAI4567,

she must come back on her H-4, before the stamp in her passport expires. Since she has left the country while her I-131 was pending, the I-131 will be deemed abandoned, and therefore never approved. H-4 remains the only means to return to the States.
Click to expand...
 
140_takes_4ever,

you know, sometimes reading a question (no matter how simple or complex it is) I question myself - whether the person had any legal advice on this? Of course, it is absolutely true that I have no legal or paralegal background, so my opinions should not be perceived as a legal advice, no matter how authoritative I may sound. But, to say the least, my opinions help people to reorient themselves in the chaotic world of immigration laws and procedures. In fact, this is the main reason I'm here. For years I've been reading (or, I'd rather characterize it as "scanning") this forum without ever having a login. But at some point, I could no longer stand the level of ignorancy (in my opinion ;)), so stepping in and explaining a thing or two seemed logical... The greatest reward I've had is that people actually listen to what I say, and learn.

Some mistakes are better corrected before they made, don't you think?
 
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