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  #1 (permalink)  
Old 07-05-2010, 11:20 AM
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Default Taking job in India, keeping GC process alive -- possible or not

Hi,

I am frustrated because been in US for more than 10 years, but still don't have GC. With my current PD (Feb 05, EB3-India) expected to the GC by Oct 2023.

My GC sponsor company also holds my H1B, and applied for 10th year extension just now.
I have an offer from a Company but for India operations. The position is in India, and salary will be paid in Indian Rupees. Is there a way I can continue my GC process?
I am not sure if I can travel every year to renew my Advanced Parole (I131). Can I transfer my H1B to the parent US company, and join as an employee for Indian subsidiary? And for the business reasons only travel using the H1B stamp for the US company?

Please let me know all the possible solutions. It's very hard to abandon the GC process after a decade of wait. At the same time it is impossible for me to keep waiting for another 12 years for the GC while the kids are growing fast, and already resisting the idea of going to India. I want to avoid the forceful exit from USA in future.

Appreciate all your helpful ideas.

Thanks,
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  #2 (permalink)  
Old 07-05-2010, 11:02 PM
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Default

It is certainly possible to continue the green card process in your situation. The key requirement is that once your PD becomes current you MUST have a full time permanent job offer in the US, which you intend to accept.

If you abandon your I-485 and pursue consular processing, that position MUST be in the same position and with the same employer that obtained your labor certification. AC-21 DOES NOT APPLY TO CONSULAR PROCESSING. If you maintain either your A/P validity or H-1 visa validity, as long as the position is in the "same or similar occupation", it can be with any US employer.

Keep in mind that even if your family ends up abandoning their I-485's, as long as you do not abandon your I-485 they will be able to "follow to join" you once your AOS is granted.

Also keep in mind the possibility of EB-1 eligibility if your position with the new company can be characterized as managerial or executive and you are able to secure a transfer back to the US in a managerial or executive position after working in India for at least one year.

I hope this information is helpful,

Ann
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  #3 (permalink)  
Old 07-06-2010, 02:52 PM
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Default Thanks

Thanks Ann,

This is really helpful.

To understand it carefully, as long as the new company can provide me a future job offer, when the PD is current the GC can be approved.

In this case,
1. Should I transfer my H1B with the new company, or it's not required? My job offer will be from the Indian company, and not the US company.

2. In case of business travel, until the PD is current, if I don't have AP renewed which visa should I travel on? As I won't be paid directly from the US counterpart of the company, I am not sure if I can travel using H1 for short time.
Could traveling on B1 visa consider it as abandonment of GC process?


Thanks,
-Raj
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  #4 (permalink)  
Old 07-06-2010, 08:04 PM
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Hi Raj,
"as long as the new company can provide me a future job offer, when the PD is current the GC can be approved."


Well, not exactly. The above statement is true only as long as you do not abandon your AOS application. To make sure that USCIS does not find that you have abandoned your AOS application you should maintain the validity of your Advance Parole if at all possible. Alternatively, if you maintain a current H-1 visa for the new employer, there is a reasonable argument (but not a guarantee) that, despite your absence abroad, you have not abandoned your AOS application. Finally, if after working overseas for the new company for at least one year, the company successfully files an EB-1 I-140 petition for you, you (and your family) can immigrate via Consular Processing in the EB-1 preference category using your old EB-3 priority date if necessary.

Should I transfer my H1B with the new company, or it's not required? My job offer will be from the Indian company, and not the US company.

If you maintain your Advance Parole validity, an H-1 transfer to the new company would not be necessary.

"In case of business travel, until the PD is current, if I don't have AP renewed which visa should I travel on? As I won't be paid directly from the US counterpart of the company, I am not sure if I can travel using H1 for short time.
Could traveling on B1 visa consider it as abandonment of GC process?"


You raise an important point. Travelling on a B-1 visa would certainly be considered an abandonment of your AOS application. Similarly, if you are found not to be "employed" by a US company because you are not on the US payroll, you would not be entitled to enter in H-1 status.

Ann
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Last edited by Ann Ruben; 07-06-2010 at 08:07 PM. Reason: typo
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  #5 (permalink)  
Old 07-10-2010, 12:02 AM
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Default Thnaks.

Hi Ann,

Appreciate your help, and this is more than useful for me.

"To make sure that USCIS does not find that you have abandoned your
AOS application you should maintain the validity of your Advance
Parole if at all possible."



I have another related question.

1. As I mentioned, my AP is applied and expected to be renewed till Aug 2011. If I leave my current employer, according to the company policy the underlying I-140 will be withdrawn by the current employer. Would that invalidate my AP already approved, or would it be unaffected and I can safely travel back to USA till Aug 2011?
If I travel after a long delay of 8 months would can cause any issue on AP based entry?

2. To renew my AP beyond Aug 2011, can I just travel for a short time to USA in April 2011, and file the renewal? And later by Aug 2011 return back to USA and collect the new renewal?

Thanks,
Raj
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  #6 (permalink)  
Old 07-10-2010, 01:36 PM
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Default : Taking job in India, keeping GC process alive -- possible or not Reply to Thread

Hi Ann:

I would like to ask related questions in this thread..

what if person does not get H1 extension approved because of this new employee-employer relationship memo, Can I stay in US on other visa (F2/F1) after H1 extension denial until my priority date become current? Do you see any problem in this option?

Well if it is not OK, Go back to India, then apply for AOS once priority date become current. Is this option will work?

Many many thanks for your response...
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  #7 (permalink)  
Old 07-13-2010, 12:31 AM
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Default H1B RFE and Options

Please respond to my question/options...this is very urgent and important given that PD is moving very fast....
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  #8 (permalink)  
Old 07-13-2010, 03:15 AM
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Default

Quote:
Originally Posted by h1bnogc View Post
Hi Ann:

I would like to ask related questions in this thread..

what if person does not get H1 extension approved because of this new employee-employer relationship memo, Can I stay in US on other visa (F2/F1) after H1 extension denial until my priority date become current? Do you see any problem in this option?
If you enter US on a non-immigrant VISA such as F1 or B1/B2, your GC would be considered abandoned.
Quote:
Originally Posted by h1bnogc View Post
Well if it is not OK, Go back to India, then apply for AOS once priority date become current. Is this option will work?

Many many thanks for your response...
You must be physically present in US to submit I-485.
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  #9 (permalink)  
Old 07-13-2010, 10:33 AM
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Dear gc-rip,

1. As I mentioned, my AP is applied and expected to be renewed till Aug 2011. If I leave my current employer, according to the company policy the underlying I-140 will be withdrawn by the current employer. Would that invalidate my AP already approved, or would it be unaffected and I can safely travel back to USA till Aug 2011?
If I travel after a long delay of 8 months would can cause any issue on AP based entry?

Assuming your I-485 has been pending for more than 180 days and your I-140 has been approved, the employer's request to withdraw the I-140 would not invalidate your A/P. As long as you can show that full time permanent US employment in a "same or similar occupation" will be available to you once your PD is current, you are entitled to enter the US using your AP at any time prior to its expiration.

2. To renew my AP beyond Aug 2011, can I just travel for a short time to USA in April 2011, and file the renewal? And later by Aug 2011 return back to USA and collect the new renewal?

According to minutes of a 2004 USCIS liaison meeting:

USCIS: (a) If a foreign national (i) already possesses a valid, unexpired advance parole, (ii) applies for a new advance parole while he/she is present in the U.S., and (iii) then departs the U.S., the foreign national must return to the U.S. during the validity period of the current advance parole already in his or her possession. If the foreign national returns timely, abandonment of the pending advance parole application would not occur. However, the foreign national may not remain abroad after the initial advance parole expires and then seek to re-enter at a later time using the subsequent advance parole that was pending adjudication at the time the person departed the U.S.

Unfortunately, informal statements such as this are not legally binding and easily subject to change.
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  #10 (permalink)  
Old 07-13-2010, 10:27 PM
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Default raysaikat

thanks raysaikat for your response.

In your opinion, F1/F2/B1/B2 is not option to keep GC process alive.

I can not apply 485 if I am in India.

please tell me what are options then? Any Senior member or Attorney, please respond to this query.

thanks!
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