Green Card Eligibility Doubt

Lalithambigai · Jul 8, 2019

Asking for a dear friend who had to move back to India due to series of health concerns of her in laws. Now that they are back in India she is worried if their 6 years old Green Card application will still be considered. She said they had completed 3 stages of the Green Card process. Her DH did his MS in the US and was working in the US before they had to rush back. She too had worked for 3 years on H4 EAD before moving back. They have a DD born in the US too. They are open to consult with an attorney if they can get any reliable leads. All they want to know is, if they still stand a chance of being considered for Green Card or is it all over for the years they spent in the US as they moved back to India.

Any and all guidance welcome.

SpringB · Jul 8, 2019

Google immigration attorney Sheela Murthy. Their website murthydotcom is resourceful and up to date with latest immigration laws

SinghManisha · Jul 8, 2019

Lalitha, please see these links below:
While Your Green Card Application is Pending with USCIS

Travel Documents

If they have a pending I-485 and did not have a advanced parole travel document prior to leaving the country, their application is considered abandoned.

Lalithambigai · Jul 8, 2019

Thank You @SpringB and @SinghManisha I will let her know right away.

shravs3 · Jul 9, 2019

I think once they leave US, GC application will be rejected. Whole process has to start from scratch

Amulet · Jul 9, 2019

Lalithambigai said: ↑

Asking for a dear friend who had to move back to India due to series of health concerns of her in laws. Now that they are back in India she is worried if their 6 years old Green Card application will still be considered. She said they had completed 3 stages of the Green Card process. Her DH did his MS in the US and was working in the US before they had to rush back. .........
All they want to know is, if they still stand a chance of being considered for Green Card or is it all over for the years they spent in the US as they moved back to India.

Any and all guidance welcome.
Click to expand...

@SinghManisha is correct. The phrase "they had to rush back" --- seems to suggest that they did not get an Advance Parole Document before leaving the USA. If this be the case, their application is defunct. However, immigration attorneys would point to the word "Generally" in the USCIS instructions (SinghManisha gave the link).... to say that their potential clients would have a small chance to revive the dead application.
"Generally, if you have a pending Form I-485 and you leave the United States without an advance parole document, you will have abandoned your application."

In my opinion, this "generally" is a bait for lawyers to use in order to garner some fees. Most petitions to the USCIS to reopen closed I-485 files get rejected. For example, see link
I-485 Denied because we left USA without advance parole! Devasted!

When Immigration lawyers are involved in the case, most lawyers would recommend an AP document application as soon as the I-485 is filed. Just to avoid "rushing back to home country" for emergencies in the extended families.... or absent-mindedly stepping across the border to see Niagara Falls, or Nogales.

Lalithambigai · Jul 9, 2019

shravs3 said: ↑

I think once they leave US, GC application will be rejected. Whole process has to start from scratch
Click to expand...

Thanks @shravs3 this was my initial reaction too. Over the years I have read right here in IL, a couple of times, that an IL couldn't travel to India inspite of a demanding situation back home due to their GC application being filed or being processed etc. Also I remember having read, now that our GC process is done, we can safely travel so we are planning to travel. That said, you can imagine her reaction when I told her what I knew. Not to misguide her on such an important topic I decided to post here and I am happy to see that it really helped bring clarity to her situation.

MalStrom · Jul 9, 2019

Deleted

Lalithambigai · Jul 9, 2019

Amulet said: ↑

When Immigration lawyers are involved in the case, most lawyers would recommend an AP document application as soon as the I-485 is filed. Just to avoid "rushing back to home country" for emergencies in the extended families.... or absent-mindedly stepping across the border to see Niagara Falls, or Nogales.
Click to expand...

Thanks @Amulet for the detailed clarification with links and more importantly above pointer on how to avoid such a situation.

Vyas · Jul 9, 2019

It is not clear from your posting whether your friend's DH still holds a valid H1 from the company he worked for and how long he is out of US. If he still holds valid H1 then his I-485 is not considered abandoned or Denied. Please see the below link from Murthy's forum for detailed explanation -

uscis-revises-policy-on-travel-while-ap-is-pending

Here is the excerpt from the article - Generally, if an applicant for adjustment of status (form I-485) departs the U.S. while the application is still pending, the I-485 is considered abandoned and is denied. However, if the I-485 applicant is in valid L-1, L-2, H1B, H-4, K-3, K-4, or V nonimmigrant status, and remains eligible for that status upon returning to the U.S., the I-485 application is not considered to be abandoned. Similarly, if an I-485 applicant is issued an AP document prior to departing the U.S., which remains valid through the date the applicant returns from the overseas trip, the I-485 generally will not be impacted.

So technically if he has valid H1-B with the same employer with whom he filed for I-485, he can return back to US on H1-B and continue his GC, only thing is his application for I-131 (Advance Parole) might be denied.

In case his H1 has expired and he is no longer working for the employer. Since he already has approved I-140, he can find a new employer to file for H1 and start GC process once he is in US retaining his prior priority date. He has to get labor and I-140 with the new employer and if the priority date is still current, he can opt for concurrent filing (Filing I-140 and I-485 at the same time) so that he can get EAD very soon.

Also, As mentioned in your posting their GC is six years old so looks like they would have filed sometime in 2011 or 2012. I don't see EB2 or EB3 had reached that priority date yet, it will take few more years. so I believe they are in I-140 approval stage and have not got a chance to file I-485.

As of July 2019 visa bulletin (Final Action Dates) -

EB2 Priority Date - 24APR09
EB3 Priority Date - 01Jul09

As of July 2019 visa bulletin (485 Filing Dates) -

EB2 Priority Date - 01JUN09
EB3 Priority Date - 01APR09

P.S : I just got my green card couple of months ago, so was doing lot of research on I-485/EAD/AP applications. It was 8 months wait for me to get my GC from the date I filed I-485 and overall 10 years wait for getting GC.

Hope this helps!!