Working in India while GC being processed !!!!!

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Nice_guy73

Registered Users (C)
Hi Guys

I need your help as I have an urgent situation here. Here is my case:

Have been working with an Indian co since past 5 yrs. Worked in India and then moved to US. My 485 was filed in Dec 01 and have an EAD and AP. Since there is no project...my company is asking me to leave (lay off) or join their Indian operations for 6-7 mths. They are promising that Gc would continue in both the cases. If I want I can easily join another co. on EAD but want to maintain my H1 status since I am single and want to bring my spouse later on H4. I am seriously thinking of moving to India for some time so that I can take a break from here....work there..and plan to marry by end of the year...then come next yr..with her... Now my queries are:

1. Can I work in India for next 6 mths when my GC is in final stages. Does it have any repurcussions since then I will be Indian eployee but with same company...I was told GC is for future employment..

2. Does my company or myself has to inform INS about my moving to India for some time..

3. My company will help me in whatever manner for GC processing so do I need something from them...

4. Lets say hypothetically if I get married in next 2-3 mths and I apply for my wifes H4 wont there be any problem since I will only have my Indian salary paystubs...How will get H4 for her..

5. What kind of chances am I taking here...I will not like to jeoparidise my GC but try to take one chance on my marriage otherwise it will be very diff to get spouse here once I am on EAD.

Friends and Gurus...pls help me in sharing your views about this issue. If someone has done this in the past i would appreciate your views too...

Thanks for the help !!!

Nice_guy03

RD: Dec 31,03
WAC:02-077
 
Nice_guy73 ,
Question to think about
You said your 485 is filed so what if you get approved while in India. Won't that make your H1 invalid?(Since it's Adjustment of status) Which means you cannot bring your wife on H4?

About going to India and working for a few months, I think you can as long as you maintain your address here and have a valid AP to return.

But about bringing your wife, it is best to get married now, bring her on H4, apply her 485 and then go work in India. That way both of you can come back with no problems.

Better to ask a lawyer
 
In lighter mood..

I wish there was a provision to file for future wife while filing I-485 (Much the same way GC is for future Job) :D
 
If your company

Is good...
They will make sure your GC process doen't get aborted......


GC is for future employer...so you will be processed at the consulate...and you will get your stamp when you come back to States
 
How about switching to CP. As you filed your 485 very recently, talk to your lawyer if you can switch to CP
 
Nice_guy73,

Buddy, just marry a US citizen and get it over with ;)


(Your mileage may vary - hehehehehe)
 
Nice_guy,

I don't think your situation is that simple. The problem is not with you but getting your spouse here. You would be better off consulting a lawyer. State your intentions about marriage and getting your spouse to the US and see what he suggests. You might have to postpone your marriage until your GC is approved or you might take a chance by having your fiancee come here on a visitor visa and then getting married and quickly filing an I485 for her. The lawyer might be able to tell you whether that is possible.

As far as I know, an AOS (I485) application is filed when the beneficiary is already in the US and have maintained legal status until that filing. The alternative is CP if you are outside. Once you file I485 it is difficult for you to stay outside the US for more than 1-2 months. AP can get you back if you go outside for 1-2 months. If you stay longer you might be denied entry even with a valid AP. Some cases like this have happened before which I came across in the newspaper. Your H1B status is not valid anymore if you don't have the job in the US for which you were granted H1B. So you cannot enter with that visa.

Have you considered moving to a new job and asking your new employer to file an H1-B for you? I am aware of the current job situation here and the mood against H1B/L1 but still if the employer wants you or your skills they will do H1B for you. It is not like no H1B applications are being filed or processed.

Good Luck.

sg_rg2
 
Originally posted by sg_rg2
You might have to postpone your marriage until your GC is approved or you might take a chance by having your fiancee come here on a visitor visa and then getting married and quickly filing an I485 for her.
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Both of these suggestions would be the absolute WORST possible things to do.

First, if the wedding takes place a single day after the I-485 is approved, then the spouse no longer becomes eligible for a derivative Green Card, but instead must be sponsored using the FB-2 category. The priority date wait would be several years. Second, if she comes in on a visitor visa and promptly files the I-485, that'd be (rightly) considered fraud.

Once you file I485 it is difficult for you to stay outside the US for more than 1-2 months. AP can get you back if you go outside for 1-2 months. If you stay longer you might be denied entry even with a valid AP.
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On what grounds would you be denied, and on what basis do you make such a statement?

Have you considered moving to a new job and asking your new employer to file an H1-B for you?
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This would be best. Above all, make sure you are married before the I-485 is approved!
 
Immigration Officer on the point of entry can make a judgement that you have abandoned your status based on the fact that you have started working outside the US. I don't think it would be very surprising....
 
Originally posted by nhusain
Immigration Officer on the point of entry can make a judgement that you have abandoned your status based on the fact that you have started working outside the US. I don't think it would be very surprising....
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What status is that? As you are not a permanent resident when the I-485 is pending you are under no obligation to maintain ANY sort of US residence or presence until the I-485 is approved.

You're confusing this with re-entry on a re-entry permit AFTER the GC is approved.
 
TheRealCanadian,

Are you seriously telling me that while my AOS application is pending, I can leave my present job, go back to India for say 6 months, and then try to re-enter the US without any problems? Do you personally know anyone or any case where this happened? I was always told that AP was for emergency travel only and you cannot come back with that if you had stayed longer than 1-2 months.

sg_rg2
 
Originally posted by sg_rg2
Are you seriously telling me that while my AOS application is pending, I can leave my present job, go back to India for say 6 months, and then try to re-enter the US without any problems?
Click to expand...

AP isn't for emergency travel anymore, with adjustments that take several years to complete. BCIS will give out AP for the simple reason of "want to travel".

If the AP is valid and the adjustment remains pending, there's no reason for them NOT to let you in, and there's no requirement for you to maintain any sort of US residence.

One thing I would be sure to bring is an employment letter when you return, just in case.
 
Here is some info from Travel Advisory link:

http://www.bcis.gov/graphics/publicaffairs/advisories/advisory.htm

...

Q2. Who needs Advance Parole?

A2. Aliens in the United States who have an emergent personal or bona fide reason to travel temporarily abroad and who have:

An application for adjustment of status pending;
Been granted benefits under the Family Unity Program;
Been granted Temporary Protected Status; or
An asylum application pending.

...

Q5. Does Advance Parole or a Refugee Travel Document guarantee admission into the United States?

A5. No, Advance Parole or a Refugee Travel Document does not guarantee admission into the United States. Aliens who have obtained Advance Parole or a Refugee Travel Document are still subject to the INS inspection process at the port of entry.

------------------------------------------------

I think (IMHO) it would be a tough sell to come back after 6+ months (that may be considered not a temporary period), while the intent is to keep working outside the US until I-485 is approved (which nobody knows when), bascially just to obtain your GC and start looking for a job then at that time.

One may also question that I-485 shouldn't be filed in the first place instead CP should be done, which seems to be more appropriate for his situation.

I think even if a person has a GC and he/she goes outside the US and comes back after working/staying outside the US (for a long period let say greater part of the calender year) he/she may be considered to have abondoned his/her GC unless if re-entry permit already applied and stuff

In any case I would not risk going outside the US like this and be at the mercy of the immigration officer at the port of entry.
 
Originally posted by nhusain
I think (IMHO) it would be a tough sell to come back after 6+ months (that may be considered not a temporary period),
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Considering that BCIS consider a 6-year H-1B to be "temporary" 6 months is no big deal. The main issue I see is that BCBP would need to be convinced that you still have intent to work for the petitioning employer.

One may also question that I-485 shouldn't be filed in the first place instead CP should be done, which seems to be more appropriate for his situation.
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That's a valid question, but you cannot just deny someone re-rentry because they didn't follow a process you consider "appropriate", especially since the original poster was statutorily entitled to file an adjustment.

I think even if a person has a GC and he/she goes outside the US and comes back after working/staying outside the US (for a long period let say greater part of the calender year) he/she may be considered to have abondoned his/her GC unless if re-entry permit already applied and stuff
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Actually, the risk is much, much higher in such a case, because a permanent resident has the obligation to maintain a permanent residence in the United States. An adjustee has no such requirement. That's an important distinction.

I also wouldn't worry about the boilerplate on AP not guaranteeing approval, since that mainly refers to the re-entry bars. If you are statutorily inadmissible because of overstay, criminal record or other such reason, AP guarantees nothing. However, if you travel overseas for a long period of time BEFORE your I-485 is approved, the inspector cannot deny you simply for that reason.
 
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