Q & A July 3, 2005

Q & A 1.

Q&A 1.

Do's and Don'ts After Leaving the U.S. without Advance Parole While in the I-485 Adjustment of Status Process

Zong Reader asks:

I am a Chinese French. In 2002-2004, I came to Boston for work under O-1 visa. In September 2003, the company sponsored me and applied green card for my wife (who holds a Chinese passport) and me. However, when the company’s contract expired in 5/2004, I went back to France without applying for advance parole. So far, we received the fingerprinting notice and employment authorization I-765 approval notice.

My questions are:

1. Can we continue process our green card application through France’s consulate?
2. During this processing period, can we come to U.S. visiting? Since I hold French passport, I believe I can come to U.S. without applying visa for 90 days. However, we have planned to come back U.S., so we kept all our savings in the U.S. What will happen if we cannot go back to U.S.?
3. If we give up our green card application now, will it affect our change coming to the U.S. in the future?
4. Can I continue use my existing O-1 visa (valid till 2006) returning to U.S.?

Dear reader:

1 I-485 adjustment of status applicants who leave the U.S. during the I-485 adjustment of status process for permanent residence without advance parole (exceptions being those on H and L visas) automatically abandon their I-485 applications. For the permanent residence application to continue from France, your company would still have to be interested in hiring you on a permanent basis, and an approved I-140 (immigrant petition for alien worker) must be forwarded to the American Embassy in Paris. If the I-140 petition has not yet been approved because you concurrently filed both the petition and adjustment of status application, the I-140 must first be approved. Also if the company instructed on the form that you would be adjusting status in the States, it must file an I-824 (application for action on an approved application or petition) to release it from the immigration office to the National Visa Center for consular processing.

2 If the Customs and Border Protections (CBP) inspector believes upon your entry that you are only visiting the U.S., he/she can admit you on the French passport under the visa waiver program for French nationals. If the contrary impression is given that you intend to stay here permanently or past the 90 day limit, you would be refused entry. Insofar as your savings is concerned, I am certain that there are procedures which your bank can identify for you as to how you can have the monies forwarded to you in the event that you cannot come back to the U.S..

3 Your act of giving up your green card application may help you come back to the U.S. in the future, but it will be in the CBP officer’s discretion to admit you.. Note that it is not the act of giving up, but the act of taking steps to apply for a green card which may give you a problem at a later date with entry. That is because most individuals coming to the U.S. on non immigrant statuses (with the notable exception of H and L visa holders) must exhibit nonimmigrant intent -- that is, an intention to return to the home country at the end of a limited stay in the U.S.. Applying for a green card is a negative factor in the determination of non-immigrant intent.

4 Your O-1 visa is predicated upon your work with the U.S. employer, and entry under the visa is based upon your having an immediate position with the organization. If you enter the U.S. under the O-1 visa and do not have an immediate position with the sponsoring company, you would be guilty of entry fraud. Such is not a recommended course of conduct.

Copyright © 2003 - 2005 Alan Lee, Esq.
The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.