Motions and Departure

[santrox]

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?

[Belle]

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?

[Attorney_22]

I agree with Belle, this may not be advisable depending on your situation. Please discuss this directly with a qualified U.S. immigration attorney.

[santrox]

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.

[kalyan_ac]

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

[Belle]

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.

[Belle]

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.

[santrox]

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.

[Belle]

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.