Motions and Departure


santrox

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Posted

If an I-485 has been denied and a MTR has been filed and pending, does a departure (for H-1B stamping purposes) constitute withdrawal of such motion?

Talk to your lawyer. I would say, no, since you are able to return and continue your status, but certainly this is not advisable. Why the urgency?

Posted

Thank you guys.

 

Although I have a valid H-1B and working for same employer before I left (for short trip abroad) and after I returned, I used AP for return as my visa has expired. I want to get back on H-1B status by attending visa abroad. I wanted to know if the departure causes an issue, as staying put in this scenario is also not an option.

 

Also, consulting an attorney but wanted to get your thoughts.

Posted

Is the sole purpose of entering on H1 is to get in status? If so, I would not advise it.

 

1. You can get stamped and re-enter after final I-485 denial (unless it was for something that makes you deportable - but then you would have major issues anyway).

2. You are likely to be considered in H1 status after entry on AP, anyway.

 

You need advice from a good lawyer, specifically familiar with AP entry with a valid H1 petition.

Posted

You can absolutely go for stamping abroad and that will not do anything to your pending I485.

Except, it's not pending. Technically, his is denied. What's pending is the appeal/MTR.

Posted

Thanks guys.

 

Thank you Belle, true, I-485 has already been denied. But I don't think I would be on H-1B if entered using AP.

That's why you need a better lawyer. Also, you are trying to do a preventive move when you are double covered (both EAD and H1 are considered to be valid at this point). And the move itself is a lot risky than you think.

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