alegriamodelo

Thanks for clarifying - huge difference indeed! As for me, pending any last minute advice from my lawyer, it's looking more and more likely filing an AOS is the way to go. Consular processing adds a tonne of paperwork, if like me you've lived in multiple countries, and a lot more uncertainty, not to mention costs.

lizzyq

So essentially, whatever your current status, even if it is considered "dual intent", don't travel overseas until you have your AP card in hand.

As we were on O visas we knew we were landlocked until we had the AP cards in hand. Within the space of 12 months I was admitted in status O-3, paroled in and then finally as a card carrying LPR. So nice to join the faster immigration queue at the airport

alegriamodelo

If you're filing an AOS, you cede your current status effective immediately so become landlocked. Only through consular processing could I have retained my current status. Theoretically, as a G visa holder, I am exempt from these regulations... but you just never know with USCIS so best not to run the risk.

Rete

That ruling has always been in place. One should never leave the US without having current and valid advance parole in hand. It's been that way for the 21 years, I've been here and so nothing has changed.

CA-NY

Depends on the visa, it's not across the board. We're filing AOS at the moment on L-1A and L2 and have been advised that we're free to travel. In fact being landlocked would have been enough for me not to apply for a GC for fear of not being able to return home in case of an emergency. Even though AP cards have not yet been received, our visas are still valid for re-entry. But this new development seems to suggest that abandonment of application could now extend to the H and L visas that were previously exempt from this rule. This thread prompted an email to our immigration lawyer today for clarification on this matter.

S Folinsky

Your questions are good ones. But the issues are on the sophisticated side. It also strikes me that the G category might be a complication (Here in LA I rarely saw G people). Talking it out with the lawyer is a good idea.

On the technical side, filing for adjustment does not cancel non-immigrant status. The "land-locked" part comes from the fact that, with limited exception, departure is considered abandonment of the application.

lizzyq

So am I right in my understanding that the original non-immigrant visa (of any class?) would still be valid until its expiry date? But the adjustment of status application would be considered abandoned if travel outside the USA occurred before issuance of AP. Also the AP allows re-entry after expiry of the original non-immigrant visa.

Rete

Yes, to both assumptions. By using the AP you are preserving your AOS filing. Even if the original non-immigration visa is still current when you have left, do not enter the US without handing them the AP. Not entering on the AP will cause your AOS to be abandoned even though your non-immigration visa will allow you to re-enter the US and assume your activities in the US under that visa.

fbf2006

I don't believe this is correct. Yes one is not supposed to travel until the AP is approved, even if on a valid H1/L1 visa (for example). Once you travel after your AP approval though, you can indeed come back to the US on your H1/LI if you so choose (and most people I know have chosen to do this). Their reasoning has been that if you use your AP to re-enter the US, they are now parolees or whatever is called and have to work using their EAD (if they even applied for it during their AOS). They are no longer in H1/L1 status if they enter using AP.

Rete

Yes, parolees is the correct term and no using AP does not invalidate their H-1B or L-1 status. It does insure that their AOS is not considered abandoned. And it is not "travel until AP is approved" but not travel until AP is approved and received.

fbf2006

The thing is if you don't enter using your H1/L1 visa, then you're not on that visa. So my experience is that people who travel during their adjustment of status process do use their H1/L1 visas to re-enter the US, though they do have their AP with them. You can't re-enter using your AP and then work using your H1/L1 as you didn't enter on that status.

I found this
https://curranberger.com/employment-...h-h-1b-status/
https://www.kwvisalaw.com/2017/11/06...dvance-parole/

jxv73

I was asked for a source... this was the advise of the immigration law firm filing petitions for my sibling's company. This has lead to switching applications to consular processing instead of AOS. This is not the Murthy law firm (the one quoted by your link). This law firm has not published this advise on their website. I have seen the emails they sent my sibling and her colleague. I'm sorry I cannot share a public link which is always my preference.

jxv73

Perhaps the OP can ask her attorneys their opinion on the matter, likelihood of a grant of AP.

S Folinsky

There is a 1975 precedent decision by the name of Matter of Hossenpour which is of interest.

It should be noted that what government adjudicators actually do, including their interpretations, is more important than what the law provides. From my military days, I have adapted the acronym of "FTA" as a term of statutory/regulatoyr interpretation often used by the government. (Substitute "alien" for "army.")

jxv73

A general comment about AP: the INA only recognizes that The Attorney General may in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States,

Note that the INA does not recognize advance parole as being separate from "emergency" parole, also that it is discretionary. It has been the policy of the government to grant parole to AOS applicants by considering that allowing these applicants back into he United States is a "significant public benefit". This is not codified in the federal code of regulations, it all stems from an old INS memo called the Puleo Memo (1992 and then updated in 1995) which set the current standard of "bona fide business or personal reason".

But with recent changes in government policy that seem to be aimed at making every step of the immigration process more complicated, USCIS may use their discretion to deny AP.