Q & A November 20, 2005

Q & A 1.

Q&A 1.

Advance Parole and Maintaining a Fallback position to Keep Legal Stats in the Event I-485 is Denied

Helen Reader Asks:

I came to U.S. in 4/2001 under B1/B2 visa. Before the visa expired, I transferred into a F1 status with a university timely. After I received my master’s degree in 5/04, I submitted I-140 and I-485 in 6/04. I completed fingerprinting in 4/05. My status is I-485 pending (my OPT expired in 7/05) and believes I will have green card in 2007. I have an advance parole (expires 11/05) and want to go back to China. However, I heard through grape vine that because I transferred F-1 in U.S., it’s better not to leave. But I also heard that it was ok to travel as long as it’s a short period of time. I am confused. My questions are:
1. Can I go back to China for a short visit at this time? If yes, how long can I stay? Since I have already had an advance parole at this time but did not use it, will it affect my next application?
2. During the I-485 pending period, do I have to have a job? I was told it would be better if I had other legal status (ex. H-1B) to fall back on during the I-485 pending period, in case the I-485 was denied. What type of job do I need? Does it have to be a full-time job? What’s minimum wages?
3. Can I get marry before receiving green card? If my boy friend only has H-1B status, will the marriage affecting our status?
4. What questions will the interview examiner usually ask?
5. If my I-485 is denied, how can I stay in U.S. legally?

Dear reader:

1 As you have a pending I-485 adjustment of status application for permanent residence, you are eligible to leave the U.S. on advance parole during the time that the adjudication is pending. You will need a valid advance parole document to leave and return to the U.S.. Having had advance parole papers in the past that you did not use will not affect the issuance of another advance parole. Persons holding advance parole do not have to visit American consulates or embassies in other countries to return to the U.S.. The advance parole papers by themselves authorize reentry as long as the holder has a valid passport. Our general recommendation on the maximum time that an individual should be overseas with advance parole papers is 60-90 days.

2 I do not know the basis of your I-140 as you have not stated it. If it was through a labor certification, it would be best to work for the sponsoring employer. If it was through national interest waiver or extraordinary alien, you should have a position in the field of expertise. You are correct that it is better to have a legal status to fall back on in the event that the I-485 is denied. A H-1B visa status is given to individuals who are being sponsored by organizations which need their services in a capacity requiring a specialized degree. H-1B work does not have to be full-time and the minimum wage is determined by prevailing wages in the area for the occupation being sponsored.

3 If you marry before receiving approval of your permanent residence, the marriage will not affect either your or your husband's status as long as neither party attempts to obtain benefits through the other's status.

4 Most employment based cases are adjudicated at the service centers of the U.S.C.I.S. without interview. If U.S.C.I.S. decides to transfer an employment based case to a local office for interview, it will usually adjudicate the I-140 petition and only leave the I-485 determination for the district office. In that case, you might be asked questions concerning your intent to work in your field or for your sponsoring employer, your maintenance of legal status, or if you fall within any of the listed grounds of exclusion on the I-485 form, etc.

5 If you are maintaining a nonimmigrant legal status such as F-1 or H-1B and the I-485 is denied, you would still be legal in the U.S. and not deportable. If you married your H-1B boyfriend and took on an H-4 status prior to the denial, you would also be legal so long as your boyfriend maintained his H-1B employment and you did not commit any acts which would render you illegal, e.g., unauthorized work.

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.