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Travel without AP. What to do next?

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Posted by dhlspam (2) 15 Mar 2018#1
Hello I am in very difficult situation and need some advice.

Me: US Citizen Spouse: Filed for Concurrent I130 and I485

We filed on December 11th, 2017 My spouse was H1-B valid until June 30th, 2018. However, she resigned from current job on early February.

Then, life and death urgent matter came up to travel outside of country. We started to ask for expedite the I131 every possible way (infopass, senator, congressman), but denied. we waited until yesterday which was around 93 days since the receipt of our application. But, Time was up and had to pull the trigger and went out of country.

As per the rule we believe our I130 and I485 application is abandoned.

Now, we need to figure out how to get her back to United States, but have no idea where to start.

1. Attempt to enter with H1-B because there might be a chance wife's employer did not notify USCIS,
2. When AP comes out, send it to current location and enter with AP.
3. Stay outside of US and what to do next ????

Is there any suggestion ?

Thank you for your kind help.
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Posted by eb39248 (46) 15 Mar 2018#2
to dhlspam:

Only the adjustment of status application (I-485) is abandoned when you leave without AP. The underlying family-based petition (I-130) will remain valid and will be processed as normal.

I would highly discourage #1. That would be considered visa fraud. Even if the H1-B status is still active, she would be using it to enter the U.S. for purposes different than what the visa was issued for.

If you leave before the AP is approved and your AOS is considered abandoned, you won't be getting the AP document either, so #2 is also unlikely to work. Usually, the only exception is if you have a valid dual intent visa (such as the H1-B), in which case it is sometimes ok to leave before AP approval. But USCIS has been inconsistent with this rule and, currently, it depends on which service center your application was sent to. So, there is a small chance, if her H1-B status is still active in their system, and depending on which service center is processing your case, that the AP might still be issued.

Your best (and more proper ways of handling this) would be to:

1. Visit a U.S. consulate abroad and try and obtain an AP on humanitarian basis. I've read that U.S. consulates abroad may issue one in circusmtances similar to yours, although I'm not finding that information right now. Also, I'm not sure whether they call it AP, travel document or something else. But, since you are a U.S. citizen, I would at least attempt contacting your local consulate and giving it a try.

2. If the previous option is unsuccessful, you might have no alternative but to continue her process through consular processing (CP). Once her I-130 is approved, instead of USCIS working on her I-485 (which will likely be abandoned by that point), they will send her approved I-130 to your local consulate so she can get an immigrant visa to return to the U.S. I believe you will have to notify USCIS that you wish to change to CP so that they will forward her I-130 to the consulate abroad. Obviously she will have to stay out of the U.S. through this process. The silver lining is that processing time for AOS applications (I-485) has increased so much that CP is sometimes faster now.
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Posted by dhlspam (2) 16 Mar 2018#3
to eb39248:

IF AP is issued , Can she return to US ?

If she returns to US, since her I485 is abandoned is she legally able to stay in US and withdraw I485 formally and re apply ?

Thank you
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Posted by eb39248 (46) 16 Mar 2018#4
to dhlspam:

I am not a lawyer, but my understanding is that if AP is issued, it's because the application wasn't considered abandoned.

I'm not sure what I would do if she does get the AP. You might want to consult with an attorney.
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Posted by mbalotia (80) 16 Mar 2018#5
to dhlspam:

I believe if the AP gets approved it means the application is not considered abandoned. In that case your spouse could come back on the AP if you mail it or take it with you. I had a close friend who visited India while her AP application was pending (but this was back in 2010). It got approved while she was in India and someone mailed her the physical AP documents and she used it to come back.
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Posted by TRAJ0130 (194) 16 Mar 2018#6
to mbalotia:

My Daughter who is studying in India came several times while her 485 was pending.She would come Apply for AP wait untill she got her receipt and left the country.We mailed her AP when it was approved.By Gods Grace She was always Lucky in getting Her AP APPROVED within 45 days.she was never asked any questions though it was always a tense situation .Recently in Oct she received her GC as well .If YOUR Spouse AP is approved may be she can get all the documentation related to her emergency exit to out of country and explain the situation at POE.But still take an advise from a lawyer.
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Posted by 29709 (8) 27 Mar 2018#7
I-130 wouldn't be abandoned. Talk to an immigration lawyer. Talk to these guys http://www.pyazdani.com
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Posted by BANEBROWs (64) 02 Apr 2018#8
to dhlspam:

Why cant she travel on H1 with a new job?
She should get a new job, get H1 transferred under premium and come back on H1b.
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