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I-140 Discussion Forum
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Hi ,
i am raaj, and i have an i-140 and i-485 pending. iam planning to go india. What are the consequences of using my Advance parole while
i still have my I-140 AND I-485 pending.
Right now iam on O-1 STATUS.
Thanks one and all.
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to raaj:
raaji,
Question: Why don't you travel on O-1?
do you have your O-1 stamped in the passport?
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I DO NOT HAVE A VISA OF MY O-1 VISA. iam debating whether to use AP or go for visa
thanks
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to raaj:
I think that the O-1 visa is a very valuable one, currently way better than H-1B to get a Gcard, you're more flexible with it, it can run longer than your typical H-1B and you might get your Gcard faster. Your O-1 will keep you in status in case your I-140 and/or I-485 gets denied. It's your SAFETY NET. If you can afford the effort and time to get it stamped then you should definitely do it.
Regarding AP: What other visa would you be working on if not O-1? Do you happen to have and EAD card?
I do not know if the use of AP makes your use of O-1 for work invalid after reentering - as it is the case with H1-B when you then would switch to EAD. So please ask an expert on O1 for this to be sure.
Hope this helps..
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to joinla2:
Dear joinla2
Thanks for your time and information. I am also debating to go for a visa. But in case iam stucking with a QUERY, what will happen to my Return.
I dont want to get stuck in INDIA.
RAAJ.
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Hi ,
i am raaj, and i have an i-140 and i-485 pending. iam planning to go india. What are the consequences of using my Advance parole while
i still have my I-140 AND I-485 pending.
Right now iam on O-1 STATUS.
Thanks one and all.
to raaj:
Raaj,
I too am on an O visa.
You absolutely MUST USE AP if you are on O-1 and leave the US with an I485 pending.
Unlike H & L visas, if you have I485 pending, return to the US on O-1 will abandon your AOS.
By all means, get your visa stamping, but it doesn't alter the situation.
As with H visas, there is some debate as to whether you need to use EAD if you still working for the O-1 petitioning company upon your return. Please check with your attorney.
Again, you absolutely MUST USE YOUR ADVANCE PAROLE DOCUMENT TO REENTER THE US IF YOU ARE ON O-1 AND HAVE AOS PENDING.
Sorry about the caps, but this is really important. The O-1 visa does have some advantages, but this is its major disadvantage.
http://www.uscis.gov/files/nativedocuments/AILA... See point 25 |
to sangiano:
Hi Sangiano,
Thank you much for the info. But what i want to know do i loose my O-1 STATUS ONCE I USE MY AP.( ADVANCE PAROLE). i dont want to loose the O-1 status.
I want to be on O-1 and work even after i use the AP. .( ADVANCE PAROLE). But not sure this is legal.
Raaj.
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Hi Sangiano,
Thank you much for the info. But what i want to know do i loose my O-1 STATUS ONCE I USE MY AP.( ADVANCE PAROLE). i dont want to loose the O-1 status.
I want to be on O-1 and work even after i use the AP. .( ADVANCE PAROLE). But not sure this is legal.
Raaj.
to raaj:
I am going to apologise in advance for a long reply but the terminology is important and I think what you are concerned with is not what you have written.
STATUS is conferred by your last method of entry to the US, other than by COS which I am not covering.
So, if you last entered on your O-1 visa, you would be in O-1 Status.
If you last entered using AP, your Status would be Parolee.
Entering as a Parolee does not VOID your O-1 visa. I think this is what you were worried about. It remains valid for use up to its expiry date.
To get back into O-1 status, you would merely have to leave the country and return using your O-1 visa. Of course, it would have to be stamped in your passport.
As I said previously, you need to ask your lawyer as to whether, having used AP, you can continue using your O-1 for work, or whether you need to use your EAD. There seems to be an equal number of differing views on this subject, based around H visas, and I don't know the answer. In fact, it is a bridge we will have to cross after using AP ourselves.
Slightly OT, I would suggest keeping a valid O-1 during AOS so that, in the unfortunate case of it being denied, you have something to fall back on.
Of course, depending on how long you have left on your O-1 and the EB classification you are applying in (hopefully EB1) then a renewal may not be necessary.
Finally, it would be really useful if you did put the details of your I-140 and I-485 in your profile.
I hope this answers any concerns you might have.
Remember, that whatever your desire to "stay on O-1", if you leave the country, you really have no option other than to return on AP if you want to retain your GC application. |
to sangiano:
Hi sangiano,
i have talked to my attorney and even sent her the PDF you sent to me. I think what u sent is valid only for people who do not have a AP. But for people who have AP they are can come either using AP OR VISA ( O-1).
RAAJ.
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Hi sangiano,
i have talked to my attorney and even sent her the PDF you sent to me. I think what u sent is valid only for people who do not have a AP. But for people who have AP they are can come either using AP OR VISA ( O-1).
RAAJ.
to raaj:
Raaj,
That is certainly an interesting viewpoint and not one I have heard before. Your attorney is saying that the AP is giving you permission to return to the US, therefore not abandoning AOS, but you can choose to re-enter on the O-1 visa. I can see the argument, but it is not written into any regulations.
I wonder if this is something discretionary to the CBP officer at POE.
Having said the above, I would not want to become a test case, if subsequently USCIS found that they did not agree with your attorney's viewpoint.
I don't understand your absolute desire to remain in O-1 status (nor am I asking you to elaborate). You would still have the O-1 to fall back on should the I485 be denied, even if you used AP.
I am going to ask my attorney the same question. If I get an answer, I will post back. |
to raaj:
Raaj,
I am also on O-1. I am a little confused by your line of reasoning above.
Sangino said that if you are on O-1 with I-485 pending you MUST enter on AP, otherwise 485 will be considered abandoned. If you do not have an AP, then, of course, you will enter using O-1, thus abandoning 485 but retaining your O-1 status.
If you DO have AP, then, as you are saying, you can use either AP or O-1. I understand that by this you mean that even if you were to enter on AP, you still retain your O-1 status.
Could you please clarify if the latter is what you meant: even if you use AP to enter, you retain your O-1 status. This seems a bit odd.
I should say that my attorney had advised me against going for a O-1 visa stamping while my 485 was pending.
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Raaj,
I am also on O-1. I am a little confused by your line of reasoning above.
Sangino said that if you are on O-1 with I-485 pending you MUST enter on AP, otherwise 485 will be considered abandoned. If you do not have an AP, then, of course, you will enter using O-1, thus abandoning 485 but retaining your O-1 status.
If you DO have AP, then, as you are saying, you can use either AP or O-1. I understand that by this you mean that even if you were to enter on AP, you still retain your O-1 status.
Could you please clarify if the latter is what you meant: even if you use AP to enter, you retain your O-1 status. This seems a bit odd.
I should say that my attorney had advised me against going for a O-1 visa stamping while my 485 was pending.
to xxnx09:
xxnx09,
I feel equally confused.
I THINK what Raaj's attorney is saying is:
a) You can show that you are not abandoning AOS by showing that you have obtained AP before leaving.
b) Having shown that (presumably at POE), choose to enter using the O-1 visa, thus retaining O-1 status.
Raaj,
Is this what you meant. Please clarify.
I've never seen that interpretation and I don't think you can do that, so I have asked my own attorney for his opinion.
I'm not expecting a quick answer, because the proposal goes against anything I've ever heard before. I could be wrong though.
All of this presupposes that Raaj can get his O-1 stamped in India. Fortunately my passport is stamped. One of my friends got stuck there for 3 months for the additional checks recently, so I would have to think very carefully before going down that route. |
to sangiano:
Hi guys,
Sangiano, xxnx09,
My view point here is i dont want to loose my pending case of i-485, which i will loose according to sangiano.
I called my lawyer yesterday and she said its not the case as long as you have AP ( where you use it or not is immaterial),your I-485 remains intact when you leave US. But you leave US without AP and you come back on O-1 VISA, then you are in trouble.
I ALSO WANT TO MAKE A POINT ABOUT O-1 STATUS, I AM TOLD BY MY LAWYER I DONT LOOSE MY O-1 STATUS EVEN IF I USE AP. i may not be able to extend the status which is valid till july 2010.
raaj.
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to raaj:
Raaj,
Did you lawyer say anything about going to get the O-1 visa stamped with AOS pending? I guess you will be using AP, hence no need to get O-1 stamped.
Your lawyer confirms that extending the O-1 once one applies for AOS is not feasible. OK. This is quite problematic in light of the new rules regarding maintaining your visa status even while on EAD. I know that there is some confusion about this new regulation but in the meanwhile some courts are interpreting that rule quite strictly. (Read jklife's harrowing experience with the DHS, IO and the courts.)
http://www.trackitt.com/usa-discussion-forums/i...
Once one applies for AOS and the term of the O-1 visa expires (which is quite likely since O-1 is extended for one year at a time after the first 3 years), I wonder what options one has to maintain legal status given that extending the O-1 is not feasible at that point.
So confusing!
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to xxnx09:
I did some more digging around and have concluded that:
1. An O-1 visa-holder while in the AoS phase must enter using AP (as we had established in this thread before).
2. Even after using AP to re-enter, technically he/she remains on O-1 (That is, now new I-9 to be filled by the employer after re-entry on AP).
3. When the duration of the current O-1 expires, one CANNOT apply for an extension of the O-1. From that point on (that is, from the date of the expiry) the employee must use EAD.
Again, given that there is no option to extend O-1 after petitioning for AOS, it seems that under the latest (controversial) definition of maintaining lawful status we become "illegal" if the AOS petition is not approved before the current visa expires. Scary.
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to xxnx09:
Hi xxnx09,
I would like to emphasize that any O-1 VISA holder having a pending AOS (485) can reenter US using o-1 visa. This is true and does not impair the AOS, i have talked to two attorneys, one in pen state and one in wiscosin.
Trust me this is applied only if you dont have a AP document in your hand.
RAAJ.
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to raaj:
Raaj,
If true, that would be excellent news. I still await a response from my own attorney.
In the meantime, could you point me to the regulation or USCIS memo that authorizes this approach. I haven't been able to find it to date.
Thanks
Sangiano
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to sangiano:
Raaj, Sangiano,
I saw a formal document issued by the University of Wisconsin for its international scholars. (I can email you the document if needed.) The document is very clearly written and I, for one, have complete faith in what it says.
One paragraph there states this:
"O-1s also benefit from dual intent and may retain their O-1 status while the Labor Certification and I-140 are pending. However, once the I-485 has been filed, they must apply for Advance Parole for travel and an Employment Authorization Document for employment that continues beyond their previously approved O-1 status or after they re-enter with Advance Parole (see EAD and Advance Parole below).
Employment Authorization Document (EAD) and Advance Parole
If the six-year maximum in H-1B status has been (or soon will be) reached, or if the applicant wishes to seek employment with additional employers, then it will be necessary to file form I-765 with the I-485 to obtain an EAD. (In limited instances, extensions beyond the 6 years in H-1B status can be obtained after the I-485 has been filed. IFSS can provide details.) O-1s also must follow this procedure. Once the I-485 is filed, they must obtain Advance Parole to travel and an EAD to continue working after being admitted with Advance Parole. The I-765 also can be filed at a later date, along with a copy of the I-797 receipt notice for the I-485. The I-765 should be filed at least 3-4 months prior to the expiration date of the H-1B or O-1, or the desired start date with the additional employer."
I think sometimes we lose track of the nuances in a verbal conversation with the attorneys, and/or the attorneys themselves fail to appreciate the nuances of our questions. (And sometimes the attorneys are just plain sloppy.) I therefore tend to find written documentation such as the one above more credible.
I am not from UW but found the document in a very long thread on trackitt titled "I485/O1".
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to xxnx09:
I also wanted to mention the following.
Whether you enter on AP or on O-1, your O-1 visa status is preserved for the duration of the current O-1. After that you MUST move to EAD. (As confirmed by your attorney, along with several others.) I see NO advantage to insisting on entering on O-1. It buys you nothing at all, and to some extent it actually jeopardizes your application. Plus the hassle of getting a new visa stamped if you don't have one already.
Again, in light of the above, what exactly is the advantage of entering on O-1 if you have both O-1 and AP available?
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to xxnx09:
Dear XXNN09,
i am going to india after 5 years and more over can u guarantee that my I-140 WILL NOT BE REJECTED ,while i am out of the US.
No you cannot guarantee, this is the sole reason im thinking about having a O-1 VISA.
raaj.
|
Firstly, and I meant to say earlier, how enjoyable it is to have a discussion about O visa issues with real O visa people. There is a dearth of threads in any forum discussing the topic.
xxnx09,
You seem to have been doing lots of research on the subject. I would really like to thank you for that.
xxnx09 wrote,
I also wanted to mention the following.
Whether you enter on AP or on O-1, your O-1 visa status is preserved for the duration of the current O-1. After that you MUST move to EAD. (As confirmed by your attorney, along with several others.) I see NO advantage to insisting on entering on O-1. It buys you nothing at all, and to some extent it actually jeopardizes your application. Plus the hassle of getting a new visa stamped if you don't have one already.
Again, in light of the above, what exactly is the advantage of entering on O-1 if you have both O-1 and AP available?
to xxnx09:
My thoughts exactly. I suppose the only "nice" things about returning in O-1 status might be:
a) the I-94 duration would be to end of visa, rather than one year (a technicality really, since AOS protects you from illegal presence.)
b) In the event that I-485 is denied, you would already be in O-1 status? I don't know whether you automatically fall back to the underlying O-1 visa status from AOS or Parolee status, or whether you have to file COS.
I'm just throwing ideas out because, I totally agree with you.
xxnx09 wrote,
Raaj, Sangiano,
I saw a formal document issued by the University of Wisconsin for its international scholars. (I can email you the document if needed.) The document is very clearly written and I, for one, have complete faith in what it says.
One paragraph there states this:
"O-1s also benefit from dual intent and may retain their O-1 status while the Labor Certification and I-140 are pending. However, once the I-485 has been filed, they must apply for Advance Parole for travel and an Employment Authorization Document for employment that continues beyond their previously approved O-1 status or after they re-enter with Advance Parole (see EAD and Advance Parole below).
Employment Authorization Document (EAD) and Advance Parole
If the six-year maximum in H-1B status has been (or soon will be) reached, or if the applicant wishes to seek employment with additional employers, then it will be necessary to file form I-765 with the I-485 to obtain an EAD. (In limited instances, extensions beyond the 6 years in H-1B status can be obtained after the I-485 has been filed. IFSS can provide details.) O-1s also must follow this procedure. Once the I-485 is filed, they must obtain Advance Parole to travel and an EAD to continue working after being admitted with Advance Parole. The I-765 also can be filed at a later date, along with a copy of the I-797 receipt notice for the I-485. The I-765 should be filed at least 3-4 months prior to the expiration date of the H-1B or O-1, or the desired start date with the additional employer."
Nice find!
That completely reinforces my initial view. It also clearly addresses the issue of having to use EAD after using AP. I would give it a high "trust value" as well.
I am not from UW but found the document in a very long thread on trackitt titled "I485/O1".
Yes, a good read.
I think sometimes we lose track of the nuances in a verbal conversation with the attorneys, and/or the attorneys themselves fail to appreciate the nuances of our questions. (And sometimes the attorneys are just plain sloppy.) I therefore tend to find written documentation such as the one above more credible.
It would seem we are "two peas in a pod". That's why I need to see the underlying regulations in INA or USCIS memo interpreting them to take Raaj attorney's view at more than face value. My makeup is that I NEED to know the basis for an opinion. It's also why I posted the INA regulation that led me to my view in my original answer to Raaj.
xxnx09 wrote,
I did some more digging around and have concluded that:
1. An O-1 visa-holder while in the AoS phase must enter using AP (as we had established in this thread before).
Agreed.
2. Even after using AP to re-enter, technically he/she remains on O-1 (That is, no new I-9 to be filled by the employer after re-entry on AP).
Where did you find the definitive proof for this? It contradicts the UW document, which says you must use EAD after returning on AP. Use of EAD would neccessitate filing a new I-9.
3. When the duration of the current O-1 expires, one CANNOT apply for an extension of the O-1. From that point on (that is, from the date of the expiry) the employee must use EAD.
Again, given that there is no option to extend O-1 after petitioning for AOS, it seems that under the latest (controversial) definition of maintaining lawful status we become "illegal" if the AOS petition is not approved before the current visa expires. Scary.
I'd never heard of this issue before i.e. not being able to extend the O-1. In fact if flies directly against what I have been told.
Even further, it appears to be directly contrary to:
8 CFR section 214.2(o)(13)
(13) Effect of approval of a permanent labor certification or filing of a preference petition on O classification.
The approval of a permanent labor certification or the filing of a preference petition for an alien shall not be a basis for denying an O-1 petition, a request to extend such a petition, or the alien's application for admission, change of status, or extension of stay. The alien may legitimately come to the United States for a temporary period as an O-1 nonimmigrant and depart voluntarily at the end of his or her authorized stay and, at the same time, lawfully seek to become a permanent resident of the United States.
To pull out the relevant text:
Effect of......the filing of a preference petition for an alien shall not be a basis for denying an O-1 petition ......(or) a request to extend such a petition.
I found this in the O-1/485 thread and confirmed it at
http://www.visalaw.com/FAS/regs2.pdf
(page 14)
The extension needs to be filed before the current visa expires.
Please can you provide the basis for thinking that the extension of O-1 whilst in AOS is not possible?
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Dear XXNN09,
i am going to india after 5 years and more over can u guarantee that my I-140 WILL NOT BE REJECTED ,while i am out of the US.
No you cannot guarantee, this is the sole reason im thinking about having a O-1 VISA.
raaj.
to raaj:
I can fully understand your desire to get the visa stamping done now, so that in the event that your I-485 gets denied, you can continue to travel. Otherwise you would have leave the US immediately to get the stamping done straight after any I-485 denial. That might not be convenient.
Depending on your area of work, there is a risk that the stamping will be delayed, pending additional checks. In fact, looking at the list of areas subject to such checks (which I can't find the link to at the moment), if you are in science, it's hard to avoid. That will mean an extended stay in India (possibly several months).
Unfortunately, those appear to be the facts currently.
Having the approved O-1 visa (whether stamped in the passport or not) is an entirely different issue to "status upon re-entry". You never lose the validity of the O-1 visa, just the "status" of O-1 if entering on AP.
It is only a problem if the I-485 is denied whilst you are out of the country and you don't have the stamping in your passport.
The only scenarios I can think of, where not having the O-1 stamping would be disastrous are:
a) You have left the country using AP. USCIS issues a straight denial of the I-485. The AP is therefore automatically revoked and, in the absence of a stamped visa in your passport, you have no way to reenter the country. It is possible but highly unlikely.
If a NOID was issued, you would have time to return to the country. Same with a RFE. Even if the I-140 was denied, it might be possible to return before USCIS formally denied the I-485.
b) You have a pending RFE. Despite the fact that the response has not been accepted by USCIS, you choose to leave the country on AP. Having left the country, USCIS doesn't accept the response and denies the I-485. You are in the same position as (a).
In the case of (b), I wouldn't leave the country until I saw that the RFE had been received, accepted and the I-485 status had returned to pending.
It is a difficult choice for you. I entirely sympathize and wish you the best of luck with whichever course of action you choose. |
Depending on your area of work, there is a risk that the stamping will be delayed, pending additional checks. In fact, looking at the list of areas subject to such checks (which I can't find the link to at the moment), if you are in science, it's hard to avoid. That will mean an extended stay in India (possibly several months, as my friend found out recently).
to sangiano:
It's called the Technology Alert List (TAL).
You can find it here:
http://www.greencardlawyers.com/TALFiel...
Hope that helps |
Sangiano (and other virtual friends),
It is indeed a pleasure to have a rational, coherent discussion with well-informed people who find themselves in similar straits. It also takes away some of the anxiety one feels at this uncertain point in one's life. We have all worked hard to achieve a fair amount of (intelligent) control over our affairs - and then we are thrown into this immigration blackbox where we seem to have zero control. It is very disorienting, to say the least.
2. Even after using AP to re-enter, technically he/she remains on O-1 (That is, no new I-9 to be filled by the employer after re-entry on AP).
to sangiano:
Where did you find the definitive proof for this? It contradicts the UW document, which says you must use EAD after returning on AP. Use of EAD would neccessitate filing a new I-9.
For the life of me now I cannot trace back to where I found the information that led me to make the definitive statement above. However, hints in support of this statement are also in the UW statement which states " ... they must apply for Advance Parole for travel and an Employment Authorization Document for employment that continues beyond their previously approved O-1 status." The operative part of the statement, at least as I read it, is " ... for employment that continues beyond their previously approved O-1 status." So - again, as I see it - enter on AP, continue with O-1 till it expires, then move to EAD. Perhaps this is not conclusive enough evidence, but it seems so to my eyes.
3. When the duration of the current O-1 expires, one CANNOT apply for an extension of the O-1. From that point on (that is, from the date of the expiry) the employee must use EAD.
Again, given that there is no option to extend O-1 after petitioning for AOS, it seems that under the latest (controversial) definition of maintaining lawful status we become "illegal" if the AOS petition is not approved before the current visa expires. Scary.
I'd never heard of this issue before i.e. not being able to extend the O-1. In fact if flies directly against what I have been told.
Even further, it appears to be directly contrary to:
8 CFR section 214.2(o)(13)
(13) Effect of approval of a permanent labor certification or filing of a preference petition on O classification.
The approval of a permanent labor certification or the filing of a preference petition for an alien shall not be a basis for denying an O-1 petition, a request to extend such a petition, or the alien's application for admission, change of status, or extension of stay. The alien may legitimately come to the United States for a temporary period as an O-1 nonimmigrant and depart voluntarily at the end of his or her authorized stay and, at the same time, lawfully seek to become a permanent resident of the United States.
I believe I can reconcile this discrepancy somewhat more satisfactorily. Note that the statement above talks of "approval of a permanent labor certification or the filing of a preference petition". These are the labor certification and the I140 steps. After filing these two you can still apply to extend O-1. However, you cannot do so after applying for the final step - AOS (I485). (Legally, I believe the term "petition" is used for I-140 and "apply" is used for AOS. Someone please correct me if I am wrong on this. I have noticed my attorney using this terminology consistently.) I filed 140 and AOS concurrently, so I cannot extend my O-1 anymore. Too bad.
That is, this hybrid-of-single-and-dual-intent O1 category is dual intent till I140 but somehow forgets that once I485 is filed. Thatis how I understand this game. What do you think?
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Sangiano (and other virtual friends), nice phrase
2. Even after using AP to re-enter, technically he/she remains on O-1 (That is, no new I-9 to be filled by the employer after re-entry on AP).
to xxnx09:
Where did you find the definitive proof for this? It contradicts the UW document, which says you must use EAD after returning on AP. Use of EAD would necessitate filing a new I-9.
For the life of me now I cannot trace back to where I found the information that led me to make the definitive statement above. However, hints in support of this statement are also in the UW statement which states " ... they must apply for Advance Parole for travel and an Employment Authorization Document for employment that continues beyond their previously approved O-1 status." The operative part of the statement, at least as I read it, is " ... for employment that continues beyond their previously approved O-1 status." So - again, as I see it - enter on AP, continue with O-1 till it expires, then move to EAD. Perhaps this is not conclusive enough evidence, but it seems so to my eyes.
Interesting. I saw the relevant parts to be:
"Once the I-485 is filed, they must obtain Advance Parole to travel and an EAD to continue working after being admitted with Advance Parole."
with the stress on "after being admitted with Advance Parole."
and expanding on your quote:
"...... they must apply for Advance Parole for travel and an Employment Authorization Document for employment that continues beyond their previously approved O-1 status or after they re-enter with Advance Parole (see EAD and Advance Parole below).
with the stress on "or after they re-enter with Advance Parole"
Since entering on AP puts you in Parolee Status, to my mind you can't be in O-1 Status. That seems to be confirmed by the statement that you need an EAD to work after being admitted on AP.
If you don't leave the country, you stay in O-1 status.
I believe I can reconcile this discrepancy somewhat more satisfactorily. Note that the statement above talks of "approval of a permanent labor certification or the filing of a preference petition". These are the labor certification and the I140 steps. After filing these two you can still apply to extend O-1. However, you cannot do so after applying for the final step - AOS (I485). (Legally, I believe the term "petition" is used for I-140 and "apply" is used for AOS. Someone please correct me if I am wrong on this. I have noticed my attorney using this terminology consistently.) I filed 140 and AOS concurrently, so I cannot extend my O-1 anymore. Too bad.
That is, this hybrid-of-single-and-dual-intent O1 category is dual intent till I140 but somehow forgets that once I485 is filed. That is how I understand this game. What do you think?
Well played Sir/Madam!
(you need to imagine me saying that in my best imitation of an upper-crust Englishman for best effect) :) Also I've been watching the first Ashes test match over the past few days (don't gloat).
I think you are absolutely correct with your definitions. How could I have been so careless with the English language. Still, it explains why IANAL.
Like a lot of the regulations, it is specific in what it says, but doesn't explicitly say that once the I485 is submitted that an extension is not permissible. That is incredibly frustrating to me. Possibly it's deliberate to allow interpretation, but would you trust USCIS with that responsibility?
It does say "The alien may legitimately come to the United States for a temporary period as an O-1 nonimmigrant and depart voluntarily at the end of his or her authorized stay and, at the same time, lawfully seek to become a permanent resident of the United States."
One could argue that the phrase "lawfully seek to become a permanent resident of the United States" also encompasses the AOS process.
When criteria to deny an extension are discussed, no mention of AOS is present.
Have you managed to find anything that specifically rules out an O-1 extension? Are there any threads where it has been discussed?
Ultimately, it becomes an intellectually stimulating debate - one that I am enjoying immensely, as I suspect are you. I think I'm losing currently by the way :) I've learnt an awful lot in the process.
It can probably only be solved by asking the specific question to our respective attorneys and asking them to explain their reasoning. Even then, we may get different answers.
It's my turn to ask - what do you think?
I look forward to your reply. |
Thank you for the long response. The information on O1 is so scattered, and so ambiguous, that it takes me a long time to hunt for it. By now I notice that I am reading things selectively - unconsciously trying to bolster my already-formed (but incorrect) beliefs. For instance:
I saw the relevant parts to be:
"Once the I-485 is filed,
...... they must apply for Advance Parole for travel and an Employment Authorization Document for employment that continues beyond their previously approved O-1 status or after they re-enter with Advance Parole (see EAD and Advance Parole below).
with the stress on "or after they re-enter with Advance Parole"
to sangiano:
I had somehow completely overlooked the part of the sentence that you highlighted.
For the benefit of others that may come across this discussion I want to state this clearly. In contrast to what I had stated previously, the information in the UW statement clearly states that once you enter on AP you are no longer on O-1. In practical terms this may mean that a new I9 needs to be filled to reflect the new status.
The question of O-1 extension after entering the AOS stage (with or without AP travel) remains unresolved. This area is really murky and I have found no clear answers on this issue whatsoever. There are suggestions and inferences from legal statutes like the one Sangiano cites above that imply that an O-1 application after filing I485 is ok. In contrast, the UW document, among many others of its type, suggests otherwise. I found one actual case: http://www.hooyou.com/o-1/story1.html
If you read this particular case (go to section III), it appears that the attorneys applied for and got a new O-1 visa (not an extension) AFTER submitting an EBIA and I495 petition.
I believe that even the attorneys are somewhat conflicted/confused on this issue. I will approach my attorney in a few weeks to see if I can obtain a clear answer on this.
Having filed the I485 already, this is what I will do for myself:
- In order to preserve my O-1, I will defer foreign travel for the next few months. In case my petition is denied, I will at least have the O-1 to fall back on. (This puts only a limited restriction on me since my O-1 expires in less than a year and I have no travel planned for the next 4 months or so.)
- About 3 months before my O-1 is about to expire, I will upgrade to Premium Processing. That way, even if the I140 petition gets denied I will have sufficient time to collate the O-1 extension application.
- If I absolutely have to, I will travel on AP. If my I140 gets denied after traveling on AP (and thereby relinquishing my O-1) - I have been unable to concoct any feasible plans for this eventuality.
Sangiano, I know that you have plans to travel soon. I hope you get the I485 approval (not just the AP approval) before you travel. This wish is not too far fetched. If you notice, your are "next in line" in both the I140 and the I485 tracker. I am keeping my fingers crossed for smooth and swift sailing for your case.
Well played Sir/Madam!
(you need to imagine me saying that in my best imitation of an upper-crust Englishman for best effect) :)
That is exactly what I did - even before I read your prompt. :-)
A good discussion is so satisfying. Even when some issues remain unresolved.
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Another long post, I afraid. But you always bring up so many good points!!!
Thank you for the long response. The information on O1 is so scattered, and so ambiguous, that it takes me a long time to hunt for it. By now I notice that I am reading things selectively - unconsciously trying to bolster my already-formed (but incorrect) beliefs.
to xxnx09:
One of the problems certainly is finding reliable information on O-1 matters. It does find a long time to find anything.
Don't beat yourself up ;) I have been equally guilty of interpreting information to boslter MY already-formed (but incorrect) beliefs.
In fact that has been the greatest value of this debate. We both had our (different) views and it was encumbent on each of us to provide a sufficient body of evidence to the other in order to sway that opinion.
For the benefit of others that may come across this discussion I want to state this clearly. In contrast to what I had stated previously, the information in the UW statement clearly states that once you enter on AP you are no longer on O-1. In practical terms this may mean that a new I9 needs to be filled to reflect the new status.
Whilst I might wish it were different, that issue seems to be resolved in a fairly unambiguous manner.
The question of O-1 extension after entering the AOS stage (with or without AP travel) remains unresolved. This area is really murky and I have found no clear answers on this issue whatsoever. There are suggestions and inferences from legal statutes like the one Sangiano cites above that imply that an O-1 application after filing I485 is ok. In contrast, the UW document, among many others of its type, suggests otherwise. I found one actual case: http://www.hooyou.com/o-1/story1.html
If you read this particular case (go to section III), it appears that the attorneys applied for and got a new O-1 visa (not an extension) AFTER submitting an EBIA and I495 petition.
I agree this issue remains unresolved.
The only thing that gives me some hope is that they did apply for the O-1 after submitting the I-485 application.
In addition, in their "Duration and extension of O-1 Status" section http://www.hooyou.com/o-1/changetoothr.html they are clearly aware of the phrase "Further, an approved labor certification or a filed immigrant petition will not jeopardize one's O-1 status or ability to obtain an O-1 visa."
Still, on balance, I'm not totally convinced.
I believe that even the attorneys are somewhat conflicted/confused on this issue. I will approach my attorney in a few weeks to see if I can obtain a clear answer on this.
Yes. I suspect it doesn't come up often enough to have the weight of case history. No-one wants their client to be a guinea pig when they are not sure.
If you feel comfortable doing so, please report back on your attorney's opinion.
Having filed the I485 already, this is what I will do for myself:
- In order to preserve my O-1, I will defer foreign travel for the next few months. In case my petition is denied, I will at least have the O-1 to fall back on. (This puts only a limited restriction on me since my O-1 expires in less than a year and I have no travel planned for the next 4 months or so.)
That is exactly our plan. If you hadn't guessed, I am the O-3 part of our partnership. My spouse won't travel abroad, unless absolutely necessary. Should it become necessary for work-related purposes, we will have to pin the attorney down on the O-1 extension issue before assessing the risks and agreeing to it. Like you, the visa validity expires in under a year.
- About 3 months before my O-1 is about to expire, I will upgrade to Premium Processing. That way, even if the I140 petition gets denied I will have sufficient time to collate the O-1 extension application.
- If I absolutely have to, I will travel on AP. If my I140 gets denied after traveling on AP (and thereby relinquishing my O-1) - I have been unable to concoct any feasible plans for this eventuality.
My opinion is that if you travel on AP, only your O-1 status is lost on re-entry, not the visa validity. If the I-485 gets denied prior to your O-1 visa expiry, you still have that to fall back onto. Also see later comment.
Sangiano, I know that you have plans to travel soon. I hope you get the I485 approval (not just the AP approval) before you travel. This wish is not too far fetched. If you notice, your are "next in line" in both the I140 and the I485 tracker. I am keeping my fingers crossed for smooth and swift sailing for your case.
Thanks you for your heartfelt wishes.
I would be happy with just the AP approval. The travel was booked nearly a year ago, well before the whole process of getting the company to sponsor the process was finally agreed. You can't put your life on hold. Yes, I would be annoyed to miss the the chance to see friends and family and for the loss on the ticket, but it wouldn't be the end of the world.
Funnily enough, I keep telling my spouse that the longer the AP and EAD take, the better the chance of straight approval. Do I believe that - hmmm.....
I can't help thinking that the reintroduction of Premium Processing is not going to help the cause.
On a related note, I believe you are being unnecessarily pessimistic regarding your own case. Your filing date is only just over a month after ours, so you should be equally optimistic for yourself. You don't strike me as the sort of person who would let anything other than the best presented petition be submitted. I'm sure your own process will be both smooth and swift as well. I think the question of whether your O-1 visa expires will become entirely moot. I will be monitoring your progress.
And in totally unrelated news:
James Anderson and Monty Panesar, in a valiant last wicket stand, held off the Australians to draw the First Test between England and Australia.
I think I'm losing it....... :) :)
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to sangiano:
I asked the following question to our attorney, who is the Corporate Immigration Attorney for a Fortune100 company. They also are well respected in AILA.
"Traveling Outside US And Status On Return
-----------------------------------------
I wonder if you could give your viewpoint on the following issue, regarding travel outside the US by an O visa holder with a pending I-485.
Currently 8 CFR 245.2(a)(4)(C) reads as follows:
(C) The travel outside of the United States by an applicant for adjustment of status who is not under exclusion, deportation, or removal proceeding and who is in lawful H-1 or L-1 status shall not be deemed an abandonment of the application if, upon returning to this country, the alien remains eligible for H or L status, is coming to resume employment with the same employer for whom he or she had previously been authorized to work as an H-1 or L-1 nonimmigrant, and, is in possession of a valid H or L visa ( if required). The travel outside of the United States by an applicant for adjustment of status who is not under exclusion, deportation, or removal proceeding and who is in lawful H-4 or L-2 status shall not be deemed an abandonment of the application if the spouse or parent of such alien through whom the H-4 or L-2 status was obtained is maintaining H-1 or L-1 status and the alien remains otherwise eligible for H-4 or L-2 status, and, the alien is in possession of a valid H-4 or L-2 visa (if required). The travel outside of the United States by an applicant for adjustment of status, who is not under exclusion, deportation, or removal proceeding and who is in lawful K-3 or K-4 status shall not be deemed an abandonment of the application if, upon returning to this country, the alien is in possession of a valid K-3 or K-4 visa and remains eligible for K-3 or K-4 status.
I have always understood this to mean that, as an O visa holder with pending I-485, I MUST:
a) Obtain the AP document before departing the US.
b) Use the AP to re-enter the US, hence putting me in "parolee" status.
I know that AILA have (unsuccessfully to date) asked USCIS to extend the definition to E and O visa holders. http://www.uscis.gov/files/nativedocuments/AILA... (Question 25 and Addendum IV)
In a recent forum posting, an attorney has advised that (b) is not the case. Instead, they are advising their client that as long as they have the valid AP with them, they may still enter using their O visa and hence remain in "O status" without having been deemed to have abandoned their pending I-485.
I can't find anything in the regulations to support this position, but I can see the logic.
I wondered whether you concurred with this opinion as it relates to me.
Travelling Outside US and Work Authorization
--------------------------------------------
Following on from this, if I use AP to return to the US, can I continue to use my O-1 as the basis for work authorization, as long as I continue to work for the original sponsoring employer?
Or having returned on AP do I have to use my EAD to work for my sponsoring company?
Again, internet research (which mainly relates to H1B visas) has turned up viewpoints supporting both positions.
Needless to say I am a little confused and would be grateful for some clarification on the issue.
Kindest Regards"
The reply was:
"Unfortunately, USCIS' current interpretation is relatively clear, you must have an Advance Parole both when you leave and when you return to avoid abandoning your application for adjustment of status. Meanwhile, the consensus is that when you return after traveling on the AP you will remain in O-1 status with the duration of your approved O-1 petition. Meaning that you will not be working on the EAD.
We are all hopeful that this silly construction of the law is eliminated, but there has been no change.
Regards,"
Additionally the following question was asked:
"Hi,
I understand that it is not wise to allow my underlying O1 status to lapse whilst the AOS is pending. Although I am optimistic that our I-485 will be approved well ahead of my O1 expiry date, when would we have to initiate renewal of the O1 visa? Am I right in thinking that we would need to travel to our home country in order for our visas to be issued and our passports stamped?
Thanks in advance"
The reply was:
Hi,
"We would apply for the renewal of the O-1 with USCIS in the U.S. approximately 4-6 months in advance of your expiration. Once your USCIS petition is approved you would not need to obtain a new O-1 visa from a consul in your home country because you can continue to travel abroad and be readmitted to the U.S. using the advance parole. In fact, as we discussed, you will have to travel on the advance parole so the O-1 visa will have little or no utility for you.
Regards,"
Summarizing the results"
a) On O-1 you MUST use AP to both DEPART and RETURN to the US to avoid abandoning your I-485.
b) Having returned using AP, you can resume your existing job using your O-1. There is no need to use EAD.
c) Even though AOS is pending you CAN extend the O-1 visa.
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a) On O-1 you MUST use AP to both DEPART and RETURN to the US to avoid abandoning your I-485.
b) Having returned using AP, you can resume your existing job using your O-1. There is no need to use EAD.
c) Even though AOS is pending you CAN extend the O-1 visa.
to sangiano:
This is the clearest articulation of the whole post-I485 O-1 business that I have seen to date. All my doubts have been cleared - with the best possible of answers. That O-1 remains intact and can be extended is very good news indeed.
Thanks so much Sangiano. Since I had just finished that whole putting together the EB1 package business, I wanted to give my attorney a reprieve from my nagging self. That is why I haven't yet approached him for answers.
(Also, I hadn't guessed that you were the O3 part of the O1 equation. Your O1 partner is lucky to have you as part of this particular difficult journey.
On another note, I wish I paid more attention to what is happening in the cricket world. That passion has somehow slipped over the years. In any case, I pay infinitely more attention to cricket than to baseball.) |
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