Immigration

Asked about 6 years ago - Falls Church, VA

Hi,
I am an l1-B visa holder. Visa expires on this December. Our home country is India. My wife and one child(l2 visa holders)are with me. We applied for the renewal. My company is ready to apply for my greencard. I have some doubts about the travelling to home country.

1.What is the procedure to go home country for a vacation after filed greencard application? Do I need any 'Advance parole' or Do I need US embassy stambing to return?

2.Next year my wife need to stay in my home country. Can my wife and child go and stay in my home country (by avoiding my travel)for one year without any problem after the visa renewal and greencard application? Is ther any need to take 'advance parole' for them to return here? What is the procedure? Please help.

Attorney answers (3)

  1. Robert Philip Webber

    Contributor Level 12

    1

    Lawyer agrees

    Answered . If you are being sponsored for a green card based on employment, you should direct these questions to the employer's lawyer.

    I assume both you and your wife were BORN in India. The employment-based green card process for someone born in India takes a long time, potentially several years. Only when you are in the third and final stage of the green card process are you eligible for advance parole travel authorization. You won't have advance parole next year if you are starting the stage 1 PERM process now. At least it is extremely unlikely.

    There is no problem with your wife being abroad for several months, even years, in the early part of the green card process. It gets more complicated after your "priority date is current" - regarding whether your wife can be abroad. Some parts of the final stage of the process (including filing the third stage I-485 application) require your wife to be physically in the US.

    If you want to travel to India in 2009, you will very likely need to obtain new L visas, if your current visas are going to expire. You will need to consult your employer and your employer's lawyer on whether any issues will arise. The only way to avoid issues at the US consulate is to avoid traveling, or potentially to obtain a new L-1 travel visa at a US consulate in Canada; but that process is only available in certain circumstances.

  2. Kevin Lawrence Dixler

    Contributor Level 20

    1

    Lawyer agrees

    Answered . General Nutshell, no legal advice:

    1. Extend H1-b1 as soon as possible at processing center unless you don't qualify.

    2. Don't leave the U.S. until the H-1b1 extension is approved. Also determine if you are inadmissible to return for some reason.

    3. Plan on spending time outside the U.S. before you get an H1-b1 extension and warn your employer

    4. Think twice before you file for labor certification.

    5. Strongly encourage your family to stay in the U.S. or face the potential consequences; seriously ponder about the processing costs, among other frustration of such a strategy.

    6. Hire a candid but experienced attorney who limits practice to immigration and visa law.


    Your company should hire an experienced immigration attorney, like our office, which provides candid detailed answers that meet your expectations. If not, then you should meet with another attorney, as well. What follows is general information not meant to be legal advice. This will not apply to everyone, nor even to you where important facts were mistakenly left out. In a nutshell, this is complicated to explain. Oversights in the form of delay appear to have been made.

    In general, you cannot continue to work 'after' your H1b expires without an "extended valid unexpired H1-b visa" or employment authorization card ["EAD"]. Both an H1-b extension and an EAD will take time to secure. You may benefit from what is called 'portability.' Some may abuse laws on unlawful employment like INA 245(k) that the D.H.S. may questionably interpret. However, I strongly recommend that you discuss your family's situation, visa issues, and portability during a paid appointment or teleconference with an experienced immigration attorney.

    Furthermore, you will need a pending adjustment application in order 'to apply' for an advanced parole travel document and an EAD. You should have an 'approved advanced parole' form, not merely an advanced parole receipt. In this situation, you can only file for advanced parole, only where you can simultaneously file for adjustment of status. It will take time to secure and get an approval for an advanced parole form. Not all candidate employees can qualify for a labor certification, where a U.S. Citizen or permanent resident has the minimum requirements for the job.

    It is difficult to get a consular official in India to issue an H1-b1 stamp for an H1b that is about to expire in December. You should renew your H1-b1 and have an approval; you should determine whether you may be deemed ineligible for a visa stamp upon leaving the U.S. A decision to have your wife and child return and remain in India will complicate processing. What your wife 'can' and 'should' do is the issue. Such actions are easy ways to create higher legal fees and more frustration. Sometimes a routine case may be indefinitely delayed with consular officials abroad and immigration examiners in the States.

  3. Kevin Lawrence Dixler

    Contributor Level 20

    1

    Lawyer agrees

    Answered . Replace H1-b1 with L-1B and you have the same answer.

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