Currently AOS but want to study abroad

[sunflowershower]

Hi,

I'm currently under AOS, I had H4 visa under my father (H1B visa) but since I just recently turned 22 my H4 visa expired. My family and I apply for Green Card (with I485 hand in) in July 2007. The problem is, I just recently got accepted in to UK Graduate school (lse) and I would love to go. It's an one-year program, but I think I would need to spend 1 and half year in UK. Is there any way that would allow me to just study aboard for 1.5-2 years in UK without jeopardizing my I485? or worse my parents' I485? What application/document should I file?

PS. I'm not sure if this information is any helpful but I am also a master's student in US. But my advisor said I can take one year off to UK and finish my US masters when I get back. Also, I'm a canadian citizen

Would really appreciate any help,

I asked my family immigration lawyer but she is completely clueless as to what I need to do.

[Pagal]

Hello,

As you have aged out, please check whether your 485 is still considered as 'dependent' or whether you are now a 'primary' applicant.

If you are primary, staying out of country before GC issue is legally fine (though you may need to prove to IO at PoE as to why you want to enter US before GC is issued).

If your I-485 was dependent, there should not be any restriction on you staying out of country for extended periods of time.

Of course, pl consult an experienced attorney before making any decision...good luck w LSE...beautiful school in a beautiful city!

[Prashanthi]

If you are 21, then you have aged out with reference to both your H-4 and I-485 petition. Unless you are protected by the child status protection act, which is unlikely if your parents visa number is not available.

Now the question is, what is you status in the United States, are you on an F-1?. If you are then you could perhaps come back on a fresh I-20 to rejoin your course. However, if you have been out of status for 6 months or more as per IRAIRA you will not be allowed back into the country for 10 years. You have to consider all these factors very carefully before you leave.

[fromnaija]

With due respect to Prashanthi, I don't think the OP aged out of his I-485. Since his parent submitted their and his I-485 in 2007 (that is before he turned 21), his application is protected under CSPA. In fact with respect to EB, once the I-485 is submitted and then the PD retrogresses, the child's age is locked in and the application will be approved whenever the PD becomes current again.

See page 3 of this document:

http://www.uscis.gov/files/pressrelease/CSPA2_pub.pdf

Visa Availability Date Regression
If a visa availability date regresses, and an alien has already filed a Form I-485 based on an approved Form I-130 or Form I-140, the Service should retain the Form I-485 and note the visa availability date at the time the Form I-485 was filed. Once the visa number again becomes available for that preference category, determine whether the beneficiary is a “child” using the visa availability date marked on the Form I-485. If, however, an alien has not filed a Form I-485 prior to the visa availability date regressing, and then files a Form I-485 when the visa availability date again becomes current, the alien’s “age” should be determined using the subsequent visa availability date.

It's risky for the OP to go out of the US while his application is pending. However, it can be done if he has advance parole. He will have to return each year to renew his AP. If this is a risk you are willing to take, you could go but be aware of this.

[Prashanthi]

I stand corrected, thank you for pointing it out, i was thinking of a situation when the I-485 was not filed, in this case the I-485 is pending. See extract from Williams memo issued in February 2003. USCIS has clarified that the date to be looked at is the date that the I-485 was filed when the visa number was available. So basically if you were a dependent when the I-485 was filed and the I-485 visa number then regressed, they will look at your age at the time of filing the I-485 and then subtract the time it took for I-40/I-130 to be approved.


Visa Availability Date Regression
If a visa availability date regresses, and an alien has already filed a Form I-485 based on an approved Form I-130 or Form I-140, the Service should retain the Form I-485 and note the visa availability date at the time the Form I-485 was filed. Once the visa number again becomes available for that preference category, determine whether the beneficiary is a “child” using the visa availability date marked on the Form I-485. If, however, an alien has not filed a Form I-485 prior to the visa availability date regressing, and then files a Form I-485 when the visa availability date again becomes current, the alien’s “age” should be determined using the subsequent visa availability date.

[sunflowershower]

First, thank you all for your kind and fast replies,

My family's I-140 was passed and we've finish all the stages, except for the I-485 at this point (it is under 'pending'). I also have work permit/authorization. I am pretty sure they are using the age of the visa availability date at the time the Form I-485 was filed (I was 19 at that time).

I understand I can travel abroad if I file for AP but that's only for 1 year, is there any other way that allow me to go abroad for 1 and half year?

But I'm assuming it is better not to leave US while I-485 is still in process?

What are my chances of getting I-485 approved? I have heard some incidence where under (seemingly) similar situation, only the parents' I-485 got passed but their older child (who passed 21) got denied.

[glus]

I think AP can also be mailed to a person who is not in the U.S. If that's the case, you could re-apply for AP once your old expires. Please verify with an attorney.

[fromnaija]

Originally Posted by glus

I think AP can also be mailed to a person who is not in the U.S. If that's the case, you could re-apply for AP once your old expires. Please verify with an attorney.

AP could be mailed but the applicant MUST be in the USA at the time of application.

[glus]

Originally Posted by fromnaija

AP could be mailed but the applicant MUST be in the USA at the time of application.

According to my attorney, you can re-apply for AP from outside of the U.S. and have it delivered to a local consulate. This is a response from my attorney:

My question:
Can one apply for AP from overseas while AOS is still pending?

Answer from Attorney:

If the AOS is still pending you can do it yes. You can even have AP sent to
overseas consulate. Then it is just called PAROLE lol, as they are not
doing it in advance. Look at the I-131 and you will see about this and
possibilities. It should talk about it in instructions.

Best Regards,

[fromnaija]

Originally Posted by glus

According to my attorney, you can re-apply for AP from outside of the U.S. and have it delivered to a local consulate.

I will not argue with what your lawyer tells you.

However, because Form I-131 is used for multiple purposes, some of the instructions are applicable to one condition and not to the other. So read the instruction again and you will see that some of the references to sending the document to overseas consulate refers to when it's used as a Reentry Permit, Refuge Travel Document, or as Advanced Parole for humanitarian reasons. For someone who applied for AOS, sorry no such luck.