If a i-485 form has not yet been submitted then can emergency travel be arranged to the native country if an emergency

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Customer: If a i-485 form has not yet been submitted then can emergency travel be arranged to the native country if an emergency arises? The person who I am asking on behalf of has advised me that they have not yet reached the stage where they have to submit a i-485 but they will be submitting it and are in the process building up towards filing form i485. In that scenario, what options are available? Can the i-131 form still be applied for or anything else which may be needed for reentry to the US?
Answered by Barbara-Ann Williams in 3 hours 1 year ago
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Barbara-Ann Williams
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Barbara-Ann Williams
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Barbara-Ann Williams
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Barbara-Ann Williams, Expert

I am happy to provide an answer. In exchange I ask at the conclusion of the session that you CLICK YES that the question was answered and click 5 STAR rating so that JA is aware that I answered the question. I also ask that you do not "shoot the messenger" if the answer is not what you wished to hear. I have more than 24 years of experience as a US Immigration Attorney assisting both business and family-based immigrant clientele.What type of valid visa is the person currently on? Typically one cannot file for Advance Parole on form I131 without filing the I485 Application.
Customer
She came as a spouse of her husband who was on a work permit
Customer
On that basis
Customer
He was on a H1B visa I believe
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Barbara-Ann Williams, Expert

OK that is promising. T
If they have a valid H1b or H4 and still employed with the H1b employer then he or she can travel on the H1b visa even before the I485 is filed OR while the I485 is pending. Those in valid H status do not need the Advance Parole. This is a very narrow exception to the Adjustment of Status rule.
Customer
Thank you for such a prompt response and clear direction. What if we suppose that the visa has expired and he is currently in the US on the visa of his spouse? I don't know how that would work but if you could give further guidance it would be appreciated
Customer
Sorry I accidentally pressed call me
Customer
They have applied for the green card but I believe they haven't yet submitted the i485 form
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Barbara-Ann Williams, Expert

If the visa is expired you could apply abroad to extend it as long as the h1b employment is ongoing. Bring the H1b Approval notice and job comfirmation letter, and marriage certificate. Try to schedule the visa appointment earlier rather than later to give time before you intend to return to the US to deal with any unexpected delays at the consulate.
Customer
Sorry I don't think I was clear. They are both in the US. She initially came to the US on the basis that she was the wife of a h1b visa holder. Now I believe his visa has expired and he is somehow currently remaining in the US depending on her visa if that makes sense?
Customer
Now she wants to travel urgent and return but is afraid she would no longer be able to return due to the pending application
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Barbara-Ann Williams, Expert

Is the wife on an H4?
Customer
Let us assume she is. I can't get through to her at the moment.
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Barbara-Ann Williams, Expert

Then they need the Advance Parole document before they travel which requires filing the I485. The H4 visa isndependwnt wholly on the H1b. If the H1b visa holder is no longer working then the H4 isnt valid either.
Customer
Just to clarify. I am being told that the at this "stage" the i485 visa is not required to be submitted but she is saying her husband has applied for a green card. Just to confirm, can one apply for a green card without initially giving the i-485 form, meaning are there any preliminary steps that are part of the application prior to send the i485 form ? because this is what I'm being told that she has applied for a green card but hasn't yet submitted the i485 form. If I'm not incorrect, the green card application is solely based on the i-485 form.
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Barbara-Ann Williams, Expert

They probably filed an I140 petition but thsts just for an immigrsnt visa. The I485 is the actual green card application. The I131 Advance Parole can only be filed with or after the I485 is filed. It doesn't sound like they are in a valid H status which means if they travel outside the US with only an I140 pending they have no visa to come back in.
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Barbara-Ann Williams, Expert

They are not prohibited from leaving, just coming back in. If they leave with just the I140 pending or approved and no underlying visa to return they just have to finish the immigrant visa process from outside the country which depending where they are from could take years.
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