1. This site uses cookies. By continuing to use this site, you are agreeing to our use of cookies. Learn More.

Traveling On A Valid H1b Visa As A Family Based Immigrant

Discussion in 'How to start the green card process' started by Mike., Jun 3, 2015.

  1. Mike.

    Mike. New Member

    Messages:
    4
    Likes Received:
    0
    Trophy Points:
    1
    I am currently on H1B status with a visa stamping valid till October 2017. I am getting married to a U.S. citizen in the 2nd week of June (next week) and we will be registering our marriage right away, in the U.S. itself.

    After that we’ll be traveling to India during last 2 weeks of July (next month) for an Indian Marriage Ceremony.

    In such a case, should I apply for I-131, I-485 (AOS) and I-765 (EAD) etc. right away after our marriage registration and then travel to India on my H1B visa? Or should I come back from India on the H1B and then file everything?

    I read somewhere on this forum that as a family based immigrant, one should not travel on an H1B after filing for AOS (I-485).

    Any guidance will be greatly appreciated!
     
  2. Ron Gotcher

    Ron Gotcher Attorney at Law

    Messages:
    35,917
    Likes Received:
    4,298
    Trophy Points:
    25,213
    The regulation that covers your situation is 8 CFR 245.2(a)(4) Effect of departure--

    (i) General. The effect of a departure from the United States is dependent upon the law under which the applicant is applying for adjustment.

    (ii) Under section 245 of the Act.

    (A) The departure from the United States of an applicant who is under exclusion, deportation, or removal proceedings shall be deemed an abandonment of the application constituting grounds for termination of the proceeding by reason of the departure. Except as provided in paragraph (a)(4)(ii)(B) and (C) of this section, the departure of an applicant who is not under exclusion, deportation, or removal proceedings shall be deemed an abandonment of the application constituting grounds for termination of any pending application for adjustment of status, unless the applicant was previously granted advance parole by the Service for such absences, and was inspected upon returning to the United States. If the adjustment application of an individual granted advance parole is subsequently denied the individual will be treated as an applicant for admission, and subject to the provisions of section 212 and 235 of the Act.

    (B) The travel outside of the United States by an applicant for adjustment who is not under exclusion, deportation, or removal proceedings shall not be deemed an abandonment of the application if he or she was previously granted advance parole by the Service for such absences, and was inspected and paroled upon returning to the United States. If the adjustment of status application of such individual is subsequently denied, he or she will be treated as an applicant for admission, and subject to the provisions of section 212 and 235 of the Act.

    (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.

    (D) 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 V status shall not be deemed an abandonment of the application if, upon returning to this country, the alien is admissible as a V nonimmigrant. [Emphasis added]
    If you travel with either advance parole, or an H or L visa, you will not be deemed to have abandoned your AOS application. This applies to both EB and FB applicants.
     
  3. Mike.

    Mike. New Member

    Messages:
    4
    Likes Received:
    0
    Trophy Points:
    1

    Got it! Thank you very much, Ron!

    So basically, I'll be able to file all I-765 (EAD), I-485 (AOS) and l-131etc. next week, right away after my U.S.marriage registration and then travel on my H1B in July without any adverse affects on my Family based Green Card (EAD and ALL) processing.

    A couple of more questions - How long does it usually take to get an EAD after the I-765 application for a Family Based Immigrant Spouse category now-a-days?. I am thinking of changing my job after coming back from India and getting an approved EAD.

    Also, does the duration usually matter to what USCIS location (Vermont, Texas etc.) I am applying at?
     
  4. Ron Gotcher

    Ron Gotcher Attorney at Law

    Messages:
    35,917
    Likes Received:
    4,298
    Trophy Points:
    25,213
    It doesn't matter where you file. All combo cards are now taking about 110 days.
     
  5. Mike.

    Mike. New Member

    Messages:
    4
    Likes Received:
    0
    Trophy Points:
    1
    Great! Thanks so much once again for all the information, Ron!
     

Share This Page