yshpakov

Can EAD/AP or H-1B jeopardize GC

14 posts in this topic

Hi there,

 

Is it safe to travel abroad having your advance parole while your I-485 application is pending? Would CBP officers recognize my AP as a valid document to enter the U.S. after my I-485 application has approved?

I asked about that my immigration attorney and they answered me the following general answer (actually looking as a copy/paste from some sort of FAQ):

Quote

Please note that if your I-485 adjustment of status application is approved while you are abroad, we strongly recommend that you wait outside the US until your green card is produced and can be sent to you via a secured courier, such as FedEx.  Entering the US using EAD/AP or an H-1B visa after your I-485 has been approved may jeopardize your green card status.  You will therefore need the actual green card and your valid passport to reenter the US.

1. So what do you think about that? Is my lawyer right? Should I really need to cancel my flight back and go through all this difficulties in situation like this?

2. What kind of risks to my Green Card status it could cause? CBP officers can cancel/revoke my Green Card or what?

Can anyone share any official clarification on this question -- links to articles on websites of USCIS or DOS or CBP?

 

Thank you,

Yury

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Are you sure you talked to a lawyer or just a paralegal in the Office? If your GC is approved when you are abroad with AP, just tell the CBP Officer on entry or act suitably happy and surprised if he tells you your GC is already approved. There is no risk.

The GC is sent to your address of record and it cannot be forwarded. So how in Hades is your Lawyer expecting to do that. ?.

https://www.murthy.com/2014/05/26/i-485-approval-during-international-travel-2/

GOOGLE Ad Infinitum. Many  reported cases in the Murthy Forum

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Of course I saw this link before. But it's 3-year old so that's why I am re-asking -- who knows what could've changed for 3 years.

This lawyer helped me 5 years ago to transfer my pretty complicated H-1B visa to another employer (I had never entered the US by that moment -- so I had no I-94, no paystubs -- that's why it was complicated). So most of his advice has been pretty correct and helpful. So in general I trust him. I'm asking because maybe there are some hidden tricky things involved.

The lawyer mentioned any friend of mine who would have access to my mail box to pick up my GC and to send it to me abroad. 

Maybe my lawyer thinks there is a risk that they let me in under the wrong status (paroled) which could make my GC be considered abandoned?

 

Any links to USCIS and other official organizations would be very appetited. Links that confirm that there is no problem.

I myself submitted this question to CBP website. If they give me a reasonable answer I will print it out to show crossing the border.

Edited by yshpakov

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It happens all the time, and it still works as described in the link Pontevecchio posted.

The whole thing is that you do NOT enter with the AP. You only use the valid AP to board the plane. You advise the officer at the POE that your GC has been approved while you were abroad. That's what the lawyer or paralegal didn't think about.

 

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And what happens if a CBP officer parole me instead of admitting under GC category? I will be in parolee status instead of GC status? Would it mean that I will lose my GC status for good (like abandoned GC)? If I'm paroled and not sent to a deferred inspection -- should I show up myself at CBP office later and insist that there was an error which need to be fixed?

Is it possible to do it in different CBP offices? For example, if I arrive to JFK (in New York City) where the CBP officers would make a mistake, would it be OK to show up at Dulles, VA CBP office (close to Washington, D.C.) trying to fix incorrect admission? (I live almost in DC)

Edited by yshpakov

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Nothing has changed. Your Call. Get a second opinion from a LAWYER, maybe the firm of Murthy. The fact that you had to ask suggests you do not really believe the "lawyer".

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pontevecchio and JoeF

 

Thank you for your answers! Appreciate them a lot! But do you have any idea what could happen if by mistake (lack of knowledge/experience) a CBP officer stamped my passport as "paroled", not "admitted as LPR" (and of course in all their databases)? (What if he would not listen to me that I-485 had approved or maybe my GC app would got approved 5 minutes prior to CBP inspection so I would not even be aware of that). I read even here on this forum about such cases when CBP officers say "Are you gonna teach me what to do?!"

Wouldn't it be a big deal? Or it could damage my green card status?

Would it be a good idea in this case to show up to a CBP office and ask them to correct this mistaken record/stamp/whatever? Would it be possible at all to correct it after such a mistake has been made?

 

Thank you,

Yury

Edited by yshpakov

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Ok guys

What that I found:

https://www.gpo.gov/fdsys/pkg/CFR-2011-title8-vol1/pdf/CFR-2011-title8-vol1-part211.pdf

Page 201 -- Sections §211.1 Visas. (a) lists all possible options to be presented

Quote

§211.1 Visas. (a) ... each arriving alien ... shall present one of the following:

(1) A valid, unexpired immigrant visa;

(2) A valid, unexpired Form I–551...

(3) A valid, unexpired Form I–327, Permit to Reenter the United States;

(4) A valid, unexpired Form I–571, Refugee Travel Document...

(5) An expired Form I–551...

(6) A Form I–551...

(7) Form I–551...

As you can see, advance parole is not listed here

Page 202

Quote

(3) If an immigrant alien returning to an unrelinquished lawful permanent residence in the United States after a temporary absence abroad believes that good cause exists for his or her failure to present an immigrant visa, Form I–551, or reentry permit, the alien may file an application for a waiver of this requirement with the DHS officer with jurisdiction over the port of entry where the alien arrives. To apply for this waiver, the alien must file Form I–193, Application for Waiver of Passport and/or Visa, with the fee prescribed in 8 CFR 103.7(b)(1), except that if the alien’s Form I–551 was lost or stolen, the alien must instead file Form I–90, Application to Replace Permanent Resident Card, with the fee prescribed in 8 CFR 103.7(b)(1), provided the temporary absence did not exceed 1 year.

Per fee I found this one:

https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-11261/0-0-0-11630/0-0-0-12080.html

Quote

(Q) Application for Waiver for Passport and/or Visa (Form I-193). For filing an application for waiver of passport and/or visa: $585. (Revised effective 11/23/10; 75 FR 58962 ) (Revised effective 7/30/07; 72 FR 29851 ) (Revised effective 4/30/04; 69 FR 20528) (Revised 2/27/03; 68 FR 8989)(Revised 1/24/03; 68 FR 3798) (Revised effective 2/19/02; 66 FR 65811) (Revised effective 10/13/98; 63 FR 43604) (Revised 7/14/94; 59 FR 30516)            

So it's up to DHS officer to approve or reject your application. And you could pay $585 fee.

So guys I am at least giving you references to the official documents.

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And I found something more:

[CBP Inspector's Field Manual]

Chapter 13: Returning Residents.

Quote

13.2    Returning Residents Lacking Evidence of Alien Registration. (Revised 5/16/05; CBP 9-05)

Ports-of-entry (POEs) encountering returning lawful permanent residents (LPR) lacking evidence of alien registration because said evidence has been secured at home or in a safety deposit box may offer a visa waiver pursuant to section 211(b) of the Act, with fee, or defer the inspection.  If the LPR claims the card has been lost or stolen, the POE may accept a Form I-90, Application to Replace Permanent Resident Card, with fee.  These actions may be considered once the identity of the LPR has been confirmed, preferably by checking against the data contained in the Image Storage and Retrieval System (refer to Chapter 31.4) and the validity of the applicant’s status has been verified in the Central Index (Central Index) System.  Fine proceedings, discussed in Chapter 43, may also be appropriate.  Any actions taken are to be recorded in the I0-95 Results Screens. 
 
a. Visa Waiver.  A LPR requesting a visa waiver is to be enrolled in ENFORCE through the creation of a Form I-193, Application for Waiver of Visa or Passport, if otherwise admissible.  The applicant requesting the waiver is to review the information recorded on the printed form for accuracy and sign where indicated.  Collect the required fee.
 
• If the waiver is approved, stamp the original Form I-193 and passport with an admission stamp and endorse both with “211(b)”.  Upon completion, the LPR is to be given a copy of the Form I-193 and be admitted as a returning resident.  The original Form I-193 is to be forwarded to the Files Control Office (FCO) for inclusion in the A-File.

• If a waiver is denied under section 211(b) of the Act, the applicant may be placed in removal proceedings before an immigration judge.  
 
b. Deferred Inspection.  Deferred inspection should be limited to a LPR who:
 
will be able to produce the requisite document within a few days; or, 
 
• claims to have lost or had the Form I-551 stolen, is unable to pay the Form I-90 fee at the time of initial inspection and has not been previously deferred for presentation of the Form I-551 document.  The LPR will be required to file a Form I-90 with U.S. Citizenship and Immigration Services (USCIS) within the next 30 days.

So at least deferred inspection may be offered in case lacking evidence of alien registration. Because this chapter and section is about permanent residents of course they mean here Green Card (Form I-551, Alien Registration Card). But GC needs to be presented in a few days at deferred inspection. But maybe it's possible to show up at deferred inspection and reschedule it because your green card is still in production or on the way to your mailbox.

And of course I-193 with $585 fee would be an option for lazy guys who don't want deferred inspection.

But it's still not clear how CBP officers admit aliens with advance paroles with no green cards just at the secondary inspection? Is it by law or is it just by common sense and not 100% legal?

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We are in the 21st Century. They have computers and databases nowadays. They can see on their screen if a GC has been approved.

You are really making a mountain out of a molehill.

Relax, it is routine, every officer knows about it, it is not a problem.

 

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You seem to be under the impression that this is the Gulag. It is not. Do you have reason to suspect that you have grounds of inadmissibility? As American Citizens, JoeF and me do not need references to official documents. Did you even read your other post ? ABOUT THE SAME MATTER.

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OK. So the common sense of CBP Officers supersedes "Title 8 CFR §211.1(a)".

Very good.

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7 hours ago, yshpakov said:

OK. So the common sense of CBP Officers supersedes "Title 8 CFR §211.1(a)".

Very good.

Sigh. It doesn't apply. There are more sections of the INA and 8CFR.

You found some stuff in a Google search and think that's the be-all and end-all. It isn't.

For example, a very cursory look at 8 CFR 235 shows:

"(ii) Verified lawful permanent residents. If the claim to lawful permanent resident status is verified, and such status has not been terminated in exclusion, deportation, or removal proceedings, the examining immigration officer shall not order the alien removed pursuant to section 235(b)(1) of the Act. The examining immigration officer will determine in accordance with section 101(a)(13)(C) of the Act whether the alien is considered to be making an application for admission. If the alien is determined to be seeking admission and the alien is otherwise admissible, except that he or she is not in possession of the required documentation, a discretionary waiver of documentary requirements may be considered in accordance with section 211(b) of the Act and §211.1(b)(3) of this chapter or the alien's inspection may be deferred to an onward office for presentation of the required documents."

Which is the deferred inspection we were talking about. The rules are spread through lots of places in the INA and the regulations. You picked one rule, that likely doesn't even apply to you, and start panicking.

Use your brain. You are not going to get deported. You also won't have to pay anything. Geez.

You act like a person who read online that nosebleed can be a sign of a serious illness, and now thinks he/she knows more than a doctor.

 

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15 hours ago, JoeF said:

Sigh. It doesn't apply. There are more sections of the INA and 8CFR.

You found some stuff in a Google search and think that's the be-all and end-all. It isn't.

For example, a very cursory look at 8 CFR 235 shows:

"(ii) Verified lawful permanent residents. If the claim to lawful permanent resident status is verified, and such status has not been terminated in exclusion, deportation, or removal proceedings, the examining immigration officer shall not order the alien removed pursuant to section 235(b)(1) of the Act. The examining immigration officer will determine in accordance with section 101(a)(13)(C) of the Act whether the alien is considered to be making an application for admission. If the alien is determined to be seeking admission and the alien is otherwise admissible, except that he or she is not in possession of the required documentation, a discretionary waiver of documentary requirements may be considered in accordance with section 211(b) of the Act and §211.1(b)(3) of this chapter or the alien's inspection may be deferred to an onward office for presentation of the required documents."

Which is the deferred inspection we were talking about. The rules are spread through lots of places in the INA and the regulations. You picked one rule, that likely doesn't even apply to you, and start panicking.

Use your brain. You are not going to get deported. You also won't have to pay anything. Geez.

You act like a person who read online that nosebleed can be a sign of a serious illness, and now thinks he/she knows more than a doctor.

 

Sorry I was not 100% clear when I said "OK. So the common sense of CBP Officers supersedes "Title 8 CFR §211.1(a)". "

Of course deferred inspection is an option. And I referred to this option several times here. I meant here an option to be admitted as LPR FOR FREE if you don't have proper documentation on hand. Everyone wants money, why the USA is an exception? It's $585 fee. And look, your quotation of 8 CFR 235 refers to 8 CRF 211.1(b)(3) which I quoted above (several days ago). So your finding doesn't contain any extra options.

I meant that CBP officers would give you a waiver of Form I-193 (and $585 fee) based on common sense rather than on provisions of law.

Per your "doctor" comment. So you recommend me to trust some people on some forums rather than a checked professional immigration attorney (I've been proceeding with him with my H1B and GC cases for over 5 years)? I even don't know your background.

Please understand me right. When I'm not sure in something I prefer to find some official texts to print them our just in case. For example, I found the "CBP Inspector's Field Manual" (see above) and I printed the relevant pages. It would be the best I could present crossing the border as a support to my just words. Do you think it would be a good idea to tell the CBP officer about some guys on some forum who said what CBP officer should do? )))

Sorry if it doesn't look polite. I really appreciate your participation it this discussion. Thank you a lot!

P.S.

And yes, I love digging in law texts. I'm a programmer so I'm very attentive to details by nature of my job.

 

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