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i-131 advance parole or re-entry permit

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I am filing the I-485 for my non-immigrant spouse. She already has an H1-B and is working in the US. Does she need to submit the I-131 for an advance parole or re-entry permit if she will travel while the I-485 is pending.

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Advance Parole.


N400

12/06/2014: Package filed

12/31/2014: Fingerprinted

02/06/2015: In-Line for Interview

04/15/2015: Passed Interview

05/05/2015: Oath letter was sent

05/22/2015: Oath Ceremony

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I am filing the I-485 for my non-immigrant spouse. She already has an H1-B and is working in the US. Does she need to submit the I-131 for an advance parole or re-entry permit if she will travel while the I-485 is pending.

You are adjusting the status of your spouse from non-immigrant to immigrant. As a pending immigrant, she cannot re-enter the US using any form of non-immigrant visa. If she leaves the US without the AP or GC the I-485 application will be considered abandoned. If the CBP does use the H1-B to grant her re-entry and then she tries to file for AOS, that would be considered immigration fraud. So the only legal way for her to remain in the US is for you to file for a spousal visa and she waits outside the US. The CBP will most likely write "CWOP" (Canceled without prejudice) on the H1-B visa. They did that to my wife's K-1 visa even though she had a GC and the K-1 had already been used and was long ago expired.

You should also file for the EAD, as her status is changing from H1-B to LPR to avoid any confusion about her authorization to work while the I-485 is pending. Both AP and EAD are free when filing the I-485.

Dave

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You are adjusting the status of your spouse from non-immigrant to immigrant. As a pending immigrant, she cannot re-enter the US using any form of non-immigrant visa. If she leaves the US without the AP or GC the I-485 application will be considered abandoned. If the CBP does use the H1-B to grant her re-entry and then she tries to file for AOS, that would be considered immigration fraud. So the only legal way for her to remain in the US is for you to file for a spousal visa and she waits outside the US. The CBP will most likely write "CWOP" (Canceled without prejudice) on the H1-B visa. They did that to my wife's K-1 visa even though she had a GC and the K-1 had already been used and was long ago expired.

You should also file for the EAD, as her status is changing from H1-B to LPR to avoid any confusion about her authorization to work while the I-485 is pending. Both AP and EAD are free when filing the I-485.

Dave

Ok. I will include the forms for the AP and EAD.

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You are adjusting the status of your spouse from non-immigrant to immigrant. As a pending immigrant, she cannot re-enter the US using any form of non-immigrant visa. If she leaves the US without the AP or GC the I-485 application will be considered abandoned. If the CBP does use the H1-B to grant her re-entry and then she tries to file for AOS, that would be considered immigration fraud. So the only legal way for her to remain in the US is for you to file for a spousal visa and she waits outside the US. The CBP will most likely write "CWOP" (Canceled without prejudice) on the H1-B visa. They did that to my wife's K-1 visa even though she had a GC and the K-1 had already been used and was long ago expired.

You should also file for the EAD, as her status is changing from H1-B to LPR to avoid any confusion about her authorization to work while the I-485 is pending. Both AP and EAD are free when filing the I-485.

Dave

That's not correct. H-1 is an exception. See attached from I-131 instructions. OP can use AP or valid H-1B visa to travel during pending AOS.

post-197361-0-05875700-1425683345_thumb.png

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You are adjusting the status of your spouse from non-immigrant to immigrant. As a pending immigrant, she cannot re-enter the US using any form of non-immigrant visa. If she leaves the US without the AP or GC the I-485 application will be considered abandoned.

You are mistaken.

H-1B, V, L, and some other visas are dual intent, meaning the alien can leave and re-enter on their visa without issue even after filing for adjustment. OP stated that their spouse is adjusting from H-1B.


Widow/er AoS Guide | Have AoS questions? Read (some) answers here

 

AoS

Day 0 (4/23/12) Petitions mailed (I-360, I-485, I-765)
2 (4/25/12) Petitions delivered to Chicago Lockbox
11 (5/3/12) Received 3 paper NOAs
13 (5/5/12) Received biometrics appointment for 5/23
15 (5/7/12) Did an unpleasant walk-in biometrics in Fort Worth, TX
45 (6/7/12) Received email & text notification of an interview on 7/10
67 (6/29/12) EAD production ordered
77 (7/9/12) Received EAD
78 (7/10/12) Interview
100 (8/1/12) I-485 transferred to Vermont Service Centre
143 (9/13/12) Contacted DHS Ombudsman
268 (1/16/13) I-360, I-485 consolidated and transferred to Dallas
299 (2/16/13) Received second interview letter for 3/8
319 (3/8/13) Approved at interview
345 (4/3/13) I-360, I-485 formally approved; green card production ordered
353 (4/11/13) Received green card

 

Naturalisation

Day 0 (1/3/18) N-400 filed online

Day 6 (1/9/18) Walk-in biometrics in Fort Worth, TX

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You are mistaken.

H-1B, V, L, and some other visas are dual intent, meaning the alien can leave and re-enter on their visa without issue even after filing for adjustment. OP stated that their spouse is adjusting from H-1B.

I read that too. That if my spouse leaves the country, she can re-enter on the H1-B. She can enter on the AP, but if the I-485 is denied, she would have to leave the country. I will submit the form for the AP since when the I-485 is accepted, I believe she will need the AP to travel at that time.

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It depends on whether she exercises any rights under the EAD and AP. If she continued to work solely by virtue of the H-1B then she could come and go just on the H-1B even after filing the I-485 and even (theoretically) if the I-485 was denied, provided she remained in compliance with the terms of her H-1B.

If, on the other hand, she changed employer and showed them her EAD that she obtained based on the I-485, then she would have exercised a benefit under her pending I-485 application, and so now would no longer be in H-1B status and would instead be a pending adjustment applicant. The same thing would happen if she entered on her AP instead of her H-1B; she would now no longer be H-1B but a pending adjustee.


Widow/er AoS Guide | Have AoS questions? Read (some) answers here

 

AoS

Day 0 (4/23/12) Petitions mailed (I-360, I-485, I-765)
2 (4/25/12) Petitions delivered to Chicago Lockbox
11 (5/3/12) Received 3 paper NOAs
13 (5/5/12) Received biometrics appointment for 5/23
15 (5/7/12) Did an unpleasant walk-in biometrics in Fort Worth, TX
45 (6/7/12) Received email & text notification of an interview on 7/10
67 (6/29/12) EAD production ordered
77 (7/9/12) Received EAD
78 (7/10/12) Interview
100 (8/1/12) I-485 transferred to Vermont Service Centre
143 (9/13/12) Contacted DHS Ombudsman
268 (1/16/13) I-360, I-485 consolidated and transferred to Dallas
299 (2/16/13) Received second interview letter for 3/8
319 (3/8/13) Approved at interview
345 (4/3/13) I-360, I-485 formally approved; green card production ordered
353 (4/11/13) Received green card

 

Naturalisation

Day 0 (1/3/18) N-400 filed online

Day 6 (1/9/18) Walk-in biometrics in Fort Worth, TX

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It depends on whether she exercises any rights under the EAD and AP. If she continued to work solely by virtue of the H-1B then she could come and go just on the H-1B even after filing the I-485 and even (theoretically) if the I-485 was denied, provided she remained in compliance with the terms of her H-1B.

If, on the other hand, she changed employer and showed them her EAD that she obtained based on the I-485, then she would have exercised a benefit under her pending I-485 application, and so now would no longer be in H-1B status and would instead be a pending adjustment applicant. The same thing would happen if she entered on her AP instead of her H-1B; she would now no longer be H-1B but a pending adjustee.

My finacee will work at the same employer until the I-485 is approved. And will not travel unless there is an emergency, using the H1-B. When the I-485 is approved, does her H1-B automatically get canceled? And thus will need an Advance Parole to travel. I was wondering if I even need to submit the form for an advance Parole.

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Generally it's best to operate under the mantra of "better to have it and not need it than to need it and not have it". You can always apply for the AP and then just not use it unless absolutely necessary.

Since she's H-1B and expecting to remain H-1B then in all likelihood she will not need her new EAD or AP, but unexpected things can happen in the future.

It's not like applying for both of them costs extra.

Edited by Hypnos

Widow/er AoS Guide | Have AoS questions? Read (some) answers here

 

AoS

Day 0 (4/23/12) Petitions mailed (I-360, I-485, I-765)
2 (4/25/12) Petitions delivered to Chicago Lockbox
11 (5/3/12) Received 3 paper NOAs
13 (5/5/12) Received biometrics appointment for 5/23
15 (5/7/12) Did an unpleasant walk-in biometrics in Fort Worth, TX
45 (6/7/12) Received email & text notification of an interview on 7/10
67 (6/29/12) EAD production ordered
77 (7/9/12) Received EAD
78 (7/10/12) Interview
100 (8/1/12) I-485 transferred to Vermont Service Centre
143 (9/13/12) Contacted DHS Ombudsman
268 (1/16/13) I-360, I-485 consolidated and transferred to Dallas
299 (2/16/13) Received second interview letter for 3/8
319 (3/8/13) Approved at interview
345 (4/3/13) I-360, I-485 formally approved; green card production ordered
353 (4/11/13) Received green card

 

Naturalisation

Day 0 (1/3/18) N-400 filed online

Day 6 (1/9/18) Walk-in biometrics in Fort Worth, TX

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I read that too. That if my spouse leaves the country, she can re-enter on the H1-B. She can enter on the AP, but if the I-485 is denied, she would have to leave the country. I will submit the form for the AP since when the I-485 is accepted, I believe she will need the AP to travel at that time.

AP serves as a travel permit only when AOS is pending. Once the 485 is approved, you will receive Green card and will become an LPR. EAD and AP then become invalid and you use your Green card to work/travel.

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AP serves as a travel permit only when AOS is pending. Once the 485 is approved, you will receive Green card and will become an LPR. EAD and AP then become invalid and you use your Green card to work/travel.

Thanks for the clear explanation. I'll include the AP. I read that I can leave the travel date as unknown and thus there is no need for a purpose?

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Correct.


Widow/er AoS Guide | Have AoS questions? Read (some) answers here

 

AoS

Day 0 (4/23/12) Petitions mailed (I-360, I-485, I-765)
2 (4/25/12) Petitions delivered to Chicago Lockbox
11 (5/3/12) Received 3 paper NOAs
13 (5/5/12) Received biometrics appointment for 5/23
15 (5/7/12) Did an unpleasant walk-in biometrics in Fort Worth, TX
45 (6/7/12) Received email & text notification of an interview on 7/10
67 (6/29/12) EAD production ordered
77 (7/9/12) Received EAD
78 (7/10/12) Interview
100 (8/1/12) I-485 transferred to Vermont Service Centre
143 (9/13/12) Contacted DHS Ombudsman
268 (1/16/13) I-360, I-485 consolidated and transferred to Dallas
299 (2/16/13) Received second interview letter for 3/8
319 (3/8/13) Approved at interview
345 (4/3/13) I-360, I-485 formally approved; green card production ordered
353 (4/11/13) Received green card

 

Naturalisation

Day 0 (1/3/18) N-400 filed online

Day 6 (1/9/18) Walk-in biometrics in Fort Worth, TX

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