Urgent - Ap Question

[HareKrishna]

Gurus please help - I am very nervous.

My wife's previous AP expired in Feb 06 and in Aug 06 we applied for her new AP and she left US in Sep 06 and I am planning to take her approved AP with me in Dec 06.
She don't have H4 either. I have used my AP earlier and working on EAD. Last time she entered US on her H4 visa stamp.

I was told that she may have abandoned her 485. Please tell what are my options.

Will they let her enter US or what problems could we face.

Thanks!!

 

[fast_gc_seeker]

Gurus please help - I am very nervous.

My wife's previous AP expired in Feb 06 and in Aug 06 we applied for her new AP and she left US in Sep 06 and I am planning to take her approved AP with me in Dec 06.
She don't have H4 either. I have used my AP earlier and working on EAD. Last time she entered US on her H4 visa stamp.

I was told that she may have abandoned her 485. Please tell what are my options.

Will they let her enter US or what problems could we face.

Thanks!!

I think she needed to have new approved AP before she left US.

 

[HareKrishna]

Thanks Fast_GC for replying

Now she has already left out of my ignorance. Now could you please tell what are my options? Has anybody in your friends ever commited this mistake?

Please let me know, I am very nervous and anxious. will they let her in to US at PoE?

Guys please share your experience/

Thanks

 

[fast_gc_seeker]

Thanks Fast_GC for replying

Now she has already left out of my ignorance. Now could you please tell what are my options? Has anybody in your friends ever commited this mistake?

Please let me know, I am very nervous and anxious. will they let her in to US at PoE?

Guys please share your experience/

Thanks

When AP is used they normally do a secondary inspection ie take people in seperate room for question and then stamp their AP's. If they stamp your wife's PP @ POE its her luck as I do not have much knowledge about how they handle this situation.

 

[techy2468]

Thanks Fast_GC for replying

Now she has already left out of my ignorance. Now could you please tell what are my options? Has anybody in your friends ever commited this mistake?

Please let me know, I am very nervous and anxious. will they let her in to US at PoE?

Guys please share your experience/

Thanks

get in touch with an attorney....and keep in touch with this forum....your case is complicated and it needs legal opinion...

 

[katewill]

odd

get in touch with an attorney....and keep in touch with this forum....your case is complicated and it needs legal opinion...

I don't understand why approved AP must be on hand before leaving the US.
(other than USCIS said so...)
applying for AP before leaving US already implies intention to come back.
(Ofcourse, AP must be approved later, if want to come back)
besides, AP application even has section where you can list foreign address you want it sent to.

How does one lose his H-1 status? Just using EAD?
How about working for H-1 sponsored company as main and EAD for part time?

 

[dzxing]

Ap/ead

I don't understand why approved AP must be on hand before leaving the US.
(other than USCIS said so...)
applying for AP before leaving US already implies intention to come back.

Apparently, USCIS thinks that to show genuine intention to come back, you should wait in US until your AP gets approved and only then depart (i.e., if you apply for AP and then depart without it, it sort of shows that you don't care anymore). They have some point here.

besides, AP application even has section where you can list foreign address you want it sent to.

I-131 may be used not only by those with I-485 pending.

How does one lose his H-1 status? Just using EAD?
How about working for H-1 sponsored company as main and EAD for part time?

H-1 status implies that you work only and exclusvely for the sponsoring company. Use EAD for part time job --> automaticlly lose H-1 status.

/dzxing

 

[fast_gc_seeker]

Apparently, USCIS thinks that to show genuine intention to come back, you should wait in US until your AP gets approved and only then depart (i.e., if you apply for AP and then depart without it, it sort of shows that you don't care anymore). They have some point here.

Absolutely wrong

I had old AP which was not yet expired. I applied for new AP and left US before it was approved and later on it was even approved [In case AP was not approved then I would have been in trouble, also I had to answer for RFE's if any and return back to US before expiry of old AP]


Law only says "One must apply for AP before departing US"

 

[ginnu]

http://www.murthy.com/news/n_uscrem.html

USCIS Reminder on Traveling with Advance Parole
Posted Oct 29, 2004
©MurthyDotCom
The USCIS has issued a reminder pertaining to the necessity for some to obtain advance parole (AP) prior to departing the United States during the upcoming holiday season. AP is generally available to persons who have adjustment of status (I-485 application) pending. It is advance permission to reenter the U.S. for purposes of continuing to pursue the application for adjustment of status. The general rule is that persons with adjustment of status cases pending, who depart the U.S. without advance parole, are deemed to have abandoned the adjustment of status application. There is an exception for those maintaining H1B/H-4 or L-1/L-2 nonimmigrant status, who are seeking to return to the U.S. in that status with a valid and unexpired visa stamp in that category.
©MurthyDotCom

 

[dzxing]

Ap

I had old AP which was not yet expired. I applied for new AP and left US before it was approved and later on it was even approved [In case AP was not approved then I would have been in trouble, also I had to answer for RFE's if any and return back to US before expiry of old AP]

Law only says "One must apply for AP before departing US"

I fully agree that it worked for you and that you most likely won't have any problems at I-485 approval. However, this is what form I-131 says (instructions, page 3, section III.D):

"D. If you travel before the advance parole document is issued, your application will be deemed abandoned if:
1. You depart from the United States; or
2. ..."

Imagine that at I-485 interview this issue comes up and it is found that you came back on AP that was approved while you were out of US, which means that you should be never issued that AP, which means that you should not have been admitted into US and your I-485 should be considered abandoned as well. I agree that this is the worst (and very unlikely) case, but it may be better to be on the safe side.

As people often say here, it all boils down to the level of risk that the person is willing to take.

/dzxing

 

[techy2468]

I fully agree that it worked for you and that you most likely won't have any problems at I-485 approval. However, this is what form I-131 says (instructions, page 3, section III.D):

"D. If you travel before the advance parole document is issued, your application will be deemed abandoned if:
1. You depart from the United States; or
2. ..."

Imagine that at I-485 interview this issue comes up and it is found that you came back on AP that was approved while you were out of US, which means that you should be never issued that AP, which means that you should not have been admitted into US and your I-485 should be considered abandoned as well. I agree that this is the worst (and very unlikely) case, but it may be better to be on the safe side.

As people often say here, it all boils down to the level of risk that the person is willing to take.

/dzxing

but i think he had a old approved AP....so he is safe....since you cannot travel without a approved AP in hand.....but its a grey area switching between two APs

 

[ginnu]

but i think he had a old approved AP....
so he is safe....
since you cannot travel without a approved AP in hand
-----one can travel without a approved AP in hand.going out of US one does not need AP, AP is forentry to US. USCIS and lawyers posted in last year and this year that one need to file AP when one is IN US and should go out with approved AP in hand if one need to enter US with AP. I know a case of lady she went to India and her AP was approved while she was out of US her husband sent her approved AP and lady entred US. I dont know if that was CBP officer mistake or she was lucky. dont know what happended to her I-485
.....but its a grey area switching between two APs

 

[HareKrishna]

Thank you guys for your heart soothing feedback and keeping this thread alive.

I talked to my attorney and she said that you can give it a try for my wife at PoE and if she is lucky the officer will let her in without any problem and in worst case if they noticed her leaving date then they may hold her passport and give her somethings called "deferred Inspection" and ask her to appear in any immigration court at local center.

After reading the response of ginnu I am thinking positive to give it a try.
My wife's luck should not be that bad as I know she is lucky as she got married to me. Ha Ha
Anyway, please tell whether this looks practical to all you guys.

Thank you so much.

 

[techy2468]

HareKrishna.....so you are saying that there is no other option other than trying her luck...

that means as per law....uscis considers the 485 application to have been abandoned, is that right??........and so the only legal solution is to refile 485...........or try luck..