I-485 pending and travel without AP

[victorgonzi]

Hi,

I'm under a Treaty Trader E-1 visa and filed the AOS package 40 days ago with premium processing for the I-140. I have not recieved the AP/EAD yet and we received an RFE for the I-140 which my attorney has decided that cannot be responded because he filed under a wrong category so he is going to start again with a new PERM process. He also says that he will probably withdraw all the petitions from USCIS and that I will not the receive the AP. My doubt is if I can travel again out of the US using my E-1 visa.


Thanks.

[newacct]

Leaving the US would abandon your AOS, but you are abandoning it anyway, so that's not an issue. The question is whether you will be able to enter on your E-1 visa. You're not supposed to have immigrant intent when entering on E-1 (i.e. you should not have intent to file AOS during that stay). The fact that you've filed AOS in the past, and are doing a PERM now, may make the officer suspicious that you have immigrant intent.

[victorgonzi]

Leaving the US would abandon your AOS, but you are abandoning it anyway, so that's not an issue. The question is whether you will be able to enter on your E-1 visa. You're not supposed to have immigrant intent when entering on E-1 (i.e. you should not have intent to file AOS during that stay). The fact that you've filed AOS in the past, and are doing a PERM now, may make the officer suspicious that you have immigrant intent.

That was my understanding based on what i read on this and other forums but my attorney says that there is no problem. Unbelievable!