URGENT: Advice required for AP issue.

CaliGC

Registered Users (C)
Friends,

This is for my cousin and not me, but need your advice if you have been through similar situation.

My cousin is currently in India and has a AP valid upto to Dec 14, 2007 but has already applied for renewal in Oct. '07 which is not yet approved. The attorney recomends that he comes back into US before expiry of current AP and get the new one and leave to India again.

BUT, in Aug. '07 he entered into US on the current AP and the immigration officer has paroled him up to Aug 2008.

The concerns are:
1. Can he enter US with the current AP after Dec. 14 '07 since he is already paroled up to Aug '08?

2. What happens to his pending AP since he is out of country and the current AP exipres very soon... will it be approved or denied?

3. If the pending AP gets denied will it cause any issues for I-485 approval?

The biggest worry is his EB2 - PD is current and finger prints are valid till May 08 and if his I-485 does not get approved before then he may be requested for Finger prints again, should the AP get denied he would not be able to enter US to submit new FPs.

Any suggestions? recommendations?

Please reply ASAP
 
I think your attorney is correct . He should come back before Dec 14,2007. If he does not return it may be considered as he has "Abandoned his 485 application".

After Dec 14 he will not be able to use the existing AP to come to US as airlines will not allow him to board the plane with the expired AP.
 
Payrolled until 2008 August when I-485 is pending is like I-94 status validity for H-1B visa. They always give one year from the date of entry. This is valid for his stay in US. He has to return back before Dec14th. Even if the currently pending AP is approved today(while he is out of USA) and you mail it to him, it cannot be used to enter into USA. He has to use the approved AP what ever he possessed while leaving USA. USCIS keeps track of all international travel and some times even domestic travel is recorded if you under go security check with DHS in some airports. If he cannot come here by Dec14th, I think he won't be allowed unless he had valid H-1B visa stamp that he can use instead of AP and EAD.
 
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Friends,

This is for my cousin and not me, but need your advice if you have been through similar situation.

My cousin is currently in India and has a AP valid upto to Dec 14, 2007 but has already applied for renewal in Oct. '07 which is not yet approved. The attorney recomends that he comes back into US before expiry of current AP and get the new one and leave to India again.

BUT, in Aug. '07 he entered into US on the current AP and the immigration officer has paroled him up to Aug 2008.

The concerns are:
1. Can he enter US with the current AP after Dec. 14 '07 since he is already paroled up to Aug '08? NO, parole issue/expiry dates must be considered but not the stamps at POE

2. What happens to his pending AP since he is out of country and the current AP exipres very soon... will it be approved or denied?
USCIS knows better, sure, it would be a problem if denied or approved after exipiry/validity date. If approval date is after 14 Dec 2007, the "gap" could raise a red flag at POE.
3. If the pending AP gets denied will it cause any issues for I-485 approval?
Denial in his presence in USA is not the problem, but in his absence could abondon his AOS.
The biggest worry is his EB2 - PD is current and finger prints are valid till May 08 and if his I-485 does not get approved before then he may be requested for Finger prints again, should the AP get denied he would not be able to enter US to submit new FPs.
Yes
Any suggestions? recommendations?

Please reply ASAP
Why your cousin is taking so many chances/risks?
It is better for cousin to be in conatct with attorney to avoid any risk/chance.
 
i would recomend ask him to come back and renew his AP....

please read below....
Source--->http://www.immigration-law.com

Reinstatement of H-1B Status for Returning H-1B 485 Applicants from Overseas Trip in Advance Parole

There are and will be some H-1B professionals who have to travel on Advance Parole rather than on a H-1B status because of their special circumstances. This includes unmarried professionals who need to maintain a H-1B status so that they can bring their future spouses to the U.S. on H-4 status and apply for the green card process. Under the current USCIS policy and laws, these professionals have two options to reinstate their H-1B status. One is to leave and return to the U.S. using a valid H-1B visa in the passport. This option is available only when they have a valid visa in the passport to return. Second option is to file I-129 H-1B extension petition. The second option does not require the professional to leave the country to reinstate the H-1B status. They can just reinstate their H-1B status within the country. When they take the second option, they should make it sure that they file the H-1B extension petition while their current approved H-1B remains "valid." Accordingly, when they apply for the H-1B extension, they should submit a copy of parolee I-94 together with the valid approved H-1B approval notice.

10/23/2007: Weird Animal of Requirement for H-1B Traveling with 485 Original Receipt Notice in Order Not to Abandon 485 Application

This regulatory requirement has never received much attention with controversy until the July VB 2007 had created a huge and massive delay in 485 receipting notices. What purpose is it supposed to serve?
The U.S. immigration law requires that a nonimmigrant is not admissible to the U.S. if the alien applies for admission to the U.S. at the airport with an "immigrant intent." The law also provides that a nonimmigrant is also allowed to enter and stay in the U.S. for "temporary" purposes only with a clear intent to depart from the U.S. in the future after the permitted period of stay. Accordingly, when an alien applies for admission to the U.S. at the port of entry in a nonimmigrant status, the law assumes that the alien is applying for admission to the country with a nonimmigrant intent and not with an immigrant intent, as otherwise, the alien would not have been admitted to the country by the immigration inspectors. From the legislative intent of the statutes, it is obvious that when a 485 applicant leaves the country and applies for readmission to the U.S. as a "nonimmigrant," the law should assume that the 485 applicant wants to enter the country as a nonimmigrant, abandoning his/her immigrant intent. Advance Parole serves the purpose of showing the immigrant intent of the returning 485 applicant by not entering as a nonimmigrant but as a parolee to continue the immigrant application process within the country. In other words, Advance Parole serves the purpose of law as two evidence. One is to establish "immigrant intent" at the time of reentry. The other is a mechanism to allow such alien to enter the country without any nonimmigrant or immigrant visa status. That much, it is clear why the Advance Parole should be required for returning I-485 applicants.
What about H or L nonimmigrant? The law specifically permits dual intent - temporary resident intent as well as permanent resident intent. Accordingly, H or L alien cannot be refused an admission to the U.S. by the immigration inspections at the airport simply for the reasons that the alien attempts to enter the country with an immigrant intent. However, this is only an issue of admissibilty of H or L nonimmigrant to the country and not an issue of retention of immigrant intent. Since the law should still determine whether the returning H or L alien is applying for readmission to the U.S. with a "specific immigrant intent," and not with a nonimmigrant intent for the purpose of 485 proceedings for adjustment of status to a lawful permanent resident, the system apparently needed an evidence to determine the specific immigrant intent of the returning H or L aliens. In other nonimmigrant visa aliens, such "immigrant" or "nonimmigrant" intent can be presumed or assumed without any problem because the law prohibits such aliens from entering the country with the immigrant intent. However, in the case of H or L aliens, there is no mechanism to derive an assumption that in a specific entry, the alien was entering with the specific immigrant inent for the purpose of the issue of retention of 485 proceeding and continuing immigrant intent. It thus appears that the regulation that requires a possession of original I-485 receipt notice is intended to provide a device to determine the specific immigrant intent of the returning H or L aliens for the purpose of the retention of the continuing immigrant intent and application for adjustment of status to a lawful permanent residence. Without such evidence, no such immigrant intent, which the 485 proceeding requires, can be established in one way or another unlike the situations in other nonimmigrants. In other words, in the H or L nonimmigrant cases, simple reentering of the alien cannot derive an assumption or presumption of intention of the alien as to nonimmigrant intent vs immigrant intent without some evidence to derive such assumption or presumption at least in the eyes of the law. Allowing dual intent does not automatically translate it into an assumption or presumption of a specific immigrant intent of the alien when the alien travels and returns to the country. This is particularly true considering the fact that even if the alien enjoys a dual intent, the alien is still entering as a "nonimmigrant" and unless a certain evidence indicates otherwise, the law can only assume that the alien is entering as a nonimmigrant and with a nonimmigrant intent rather than an immigrant intent. Presumedly, the drafter of the regulation intended to use 485 receipt notice to determine the continuing immigrant intent of the 485 travelers upon returning to the country. Again, here the issue is not admissibility but abandonment of immigrant intent.
Well, a law is a law. Even though the record reflects that the immigration examiners have rarely implemented and enforced this law in adjudicating 485 applications, such record cannot guarantee continuing ignorance of this law by the adjudicators. As it stands now, should an I-485 application be denied on this evidence of abandonment of immigrant intent by an adjudicator, the burden of proof of continuing immigrant intent at the time of reentry should rest with the applicant requiring specific evidence of immigrant intent at the time of reentry. People may as well travel with the original I-485 receipt notices until the USCIS amends the regulation.

10/20/2007: Reasons for H-1B Professionals in 485 Proceedings Applying for EAD+AP Despite No Intent/Plan to Change Employment

Attorneys often advise the EB 485 clients to file EAD and Advance Parole Applications concurrently with I-485 applications even when the clients tell the attorneys that they do not have any plan to change employer such as AC 21 change of employment or taking second jobs. Why? It is "contingency." The law requires that the H-1B professionals comply with the terms and conditions of Labor Condition Application and USCIS H-1B regulation, no matter whether the alien is in I-485 proceedings or not in I-485 proceedings. When such violation takes place after filing of I-485, the alien's permit to remain in the U.S. pending I-485 application will not be affected and remain intact. However, continuing employment with the H-1B employer based on the H-1B visa status will constitute an unauthorized employment. This can haunt at the time of adjudication of I-485 applications. More importantly, it will affect eligibility of 245(K) when such violation exceeded six months or longer.
Most of these violations are caused by the H-1B employers. For instance, nowadays, corporations and businesses are frequently going through merger or acquisition. Some of the merger or acquisition is considered a successor-in-interest entity to the H-1B employer and the H-1B employee's H-1B status will not be affected. Others are not considered a successor-in-interest entity to the H-1B employer. When such H-1B employer, after acquisition or merger, fails to file H-1B transfer timely or subsequently, the H-1B professional loses the H-1B nonimmigrant status with no fault of his or her own. Possession and instant availability of EAD will save the new employer as well as the H-1B professional since such alien is allowed to work for any new employer without a valid H-1B nonimmigrant status, including the new employer after unqualified M&A. Same is true with the bankrupcies of the H-1B employer, particularly reorganization under the supervision of the bankrupcy court. Some employers violate the H-1B and LCA rules by reassigning the H-1B employees at a location outside of the metropolitan area of the current H-1B petition with or without knowledge of the H-1B and LCA rules. EAD in the file can act a savior in certain circumstances in that the employer is not bound by the H-1B/LCA rules once they use the H-1B employees' EAD as the basis of employment authorization rather than H-1B nonimmigrant status. What about a failure to pay the H-1B wages which is evidenced by the alien's federal income tax return, 1040, and W-2? The 485 adjudicators are thoroughly reviewing and analyzing the alien's 1040 and W-2 to determine whether the H-1B employers paid the H-1B employees the H-1B salaries since payment of less than H-1B salary constitues a violation of the H-1B and LCA rules. Once the employer uses EAD rather than H-1B visa status for the authorization to employ an alien, the employer can pay whatever amount they want to pay inasmuch as the alien employees agree to the adjusted salary. Such employer is not bound by the H-1B and LCA prevailing wage rules. There are some H-1B professionals who provided certain services to others without knowing that it still contituted a self-employment and the alien received IRS 1099. This unauthorized employment is reflected in the alien's federal tax returns since those who received the services and paid some money to the H-1B aliens file 1099 with the IRS. Even baby-sitting on a payment of small amount constitutes an unauthorized employment for the H-1B aliens. Runing and managing own small businesses such as groceries, landscaping services, etc. all constitute the unauthorized employment violating the H-1B nonimmigrant status. EAD frees the aliens from the H-1B and LCA rules.
Of course, the H-1B employers will have to revise I-9 relecting the basis of employment authorization from H-1B nonimmigrant status to EAD. I-9 must be timely revised before such changes. Still, the immediate availability of EAD will save the H-1B employers and the H-1B employees from potential serious violation of the H-1B and LCA rules in that the employers may not be subject to any sanctions for violation of H-1B terms and conditions, if timely changed the basis of employment, and the alien in I-485 proceeding may not face a potential denial of I-485 applications for unauthorized employment. The contingencies usually arise without prior warning or completely out-of-blue. When the H-1B is not in possession of EAD and AP, the alien is likely trapped into illegal status as EAD and AP applications take time. Attorneys tell the clients that EAD and AP are "assets" which they should not use, unless absolutely necessary, but must keep in their safe deposit box for a totally unanticipated contingent events. For the EB 485 applicants, EAD and AP can be expensive, but certainly they are worth the expenses and not a waste of filing fees. This reporter encountered a number of clients who refused to file EAD and AP arguing that they did not need it and they did not want to waste the money and afterwards came to our office in tears because of the development of unanticipated events. It is something which all of the H-1B professionals in EB-485 proceedings must think about. Not once but twice before making a decision.


Source--->http://www.immigration-law.com
 
He needs to catch the next flight - its 12th Dec in India already!! He has 30 hours to get back - add 14 hours of flight time (best scenario - if not delayed). That gives him about 10-12 hours to catch the flight.
 
Thank You All!!!

THANK YOU ALL!!!

For the timely reply and suggestions. I forwarded the messages and my cousin should already be on a flight US arriving on the 13th.

May lord bless you all with quick approvals!
 
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