COVID-19 and travel without AP/EAD...

[greenwithenvy]

Hi all,

I filed AOS in mid-October 2019, asking for expedited EAD, and have had to travel abroad on several occasions since (twice due to work and once due to death of a family member). Each time I've had to visit my local USCIS office and have been granted emergency advance parole.

Last month, my husband (US/Australian dual citizen) had to accompany his 90+ year-old grandmother to isolate with his family in Australia. I tried desperately to acquire emergency AP from USCIS for three days, postponing my flight in order to obtain parole before leaving. I got an emergency appointment twice, only to be met by closed offices and security guards telling me I would not be seen (they closed the USCIS to the public the morning of my first appointment). I called the USCIS without stop for 50+ hours with no response to my request. Australia seemed to be moving towards a total travel ban, and I had to ask my husband to leave without me so that his grandmother could make it to Australia in time before they closed the border.

The same day my husband left, Australia decided to close their borders to all non-citizens (with a vague exemption for spouses). Fearing further restrictions and potentially having to be apart for many months due to COVID-19, with me stuck alone in the US where I have no family, unemployment benefits or health care, I got on my flight the next day to Australia.

I have lived and worked and taxed in the US for ten years, currently on an O-1 visa. We have been together for ten years, married for four. Only just filed in 2019, because my work made the "no travel" restrictions impossible before (we tried in 2016, and had to abandon because I had a job that required constant travel). I am entirely aware of the implications of travel while AOS is pending (thus I've used emergency AP thrice). However, my current O-1 visa is still valid until mid-June.

The way I see it I have 3 options:

1. Return to US as soon as possible on my still valid O-1 visa and hope that my AOS will not be considered abandoned.

2. Wait abroad until my EAD is approved, have the card mailed to me, and enter US on my EAD (I've read about a handful of people who have done so successfully).

3. Try to change my AOS to consular processing from abroad (can this be done mid-process, and what is the timeline?)


The last update on my USCIS case site is that my fingerprints were processed in early March.

My husband needs to be back in the US by August, and I feel incredibly stressed about how I can salvage my status.
Filing a new petition and waiting another year or so is an option, but with the new immigration ban I might not be able to get another work visa.
Not working for a year is not financially an option.

Any and all advice (minus telling me I should have gotten AP before leaving -- trust me I know) is very welcome!



I wish everyone good health and good luck in these stressful and difficult times. COVID-19 has made immigration even more taxing, and it wasn't easy to begin with..!

[newacct]

1. Returning to the US on your O-1 visa will not prevent your AOS from being abandoned. Only people who had H1b/H4/L1/L2/K3/K4/V status before leaving and return on those types of visas will not abandon AOS if they don't have Advance Parole. If you do manage to enter the US on your O-1 visa (and it's not entirely clear how immigrant intent works with O-1), you might be able to eventually file I-485 again. Your petition is fine; it's just the I-485 that needs to be re-filed.
2. I think you mean your Advance Parole (EAD can come with Advance Parole together as a "combo card", but it's the Advance Parole that matters for entry; EAD is only for employment, and an EAD that is not a combo card will not help you). No, that will not work, as leaving the US before the Advance Parole was granted abandons your AOS. You cannot re-enter the US on an Advance Parole that was granted after you left.
3. It's possible. I believe you would have to file I-824 to ask USCIS to send the approved petition to NVC. (If the petition is still pending, some people say it might be possible to ask USCIS to change it to Consular Processing without filing I-824, but I am not sure about this.) However, I believe this would take a long time; the I-824 takes a long time to process, and then you would still have to go through the Consular Processing process which takes a while also.

[bondsandloan]

Unfortunately, it was an incorrect decision to leave the US without an AP or H/L. Your AoS will be deemed abandoned and hence any benefit you get with it - EAD/AP will also be declined. Your husband should have made arrangements for you to live in the US - lease, cash for food, etc. before he left. It unfortunate situation but Only H & L visas are dual intent visas.

Is your O visa still valid and are you complying with its requirements? I am not sure if you can enter on your O. You need to talk to a lawyer. You could also try enter on it & see what happens.

Also you very well might get an Ead/AP in the mail but that would be by Uscis error. But your I485 would most probably be declined as deemed abandoned.

[greenwithenvy]

Thank you both for your replies. It seems as per your information and what I've read on USCIS websites that my current AOS is beyond salvage, so I'm now looking at my new line of options.

1. Ask to have my case transferred to Norway (my home country) for consular processing. This might take a really long time...

2. Re-apply all over from Norway via consular processing.

3. Return to US on my O-1 or on a visa waiver (as spouse of US citizen I can enter under the ban), and re-file AOS from within the US all over again.

My big questions is this: If I'm applying using consular processing, would I then be able to also apply for a new O-1 visa and enter US on O-1 status while my green card application is pending in consular processing? So live and work in US, but return to Norway for medical and interview and eventually return to US with green card when approved? This would allow me to keep my job in US and my driver license while also living with my husband in US (I've been living full time in US for ten years already). So basically my green card process would be happening in Norway, but I'd be in US on O-1 visa while waiting. I can't seem to find another way for me to avoid a period of not being able to travel, which would cause me to lose my job. EAD/AP is taking so long these days, I cannot commit to 6+ months of no work, no travel and no driving privileges... I also cannot fathom being apart from my husband for 1+ year while processing.

Any thoughts?

Thanks again for all your helpful advice and info.

[newacct]

You should definitely not enter as a (B2 or VWP) visitor with preconceived intent to file I-485 during that stay. As for O-1, I am not quite sure. 9 FAM 402.13-10 says that INA 214(b) (presumption of immigrant intent) applies to O-1 and you must have a "temporary" intent to stay in the US, but 9 FAM 402.13-5(B) says that having a pending petition should not lead to denial of entry on O-1. It doesn't mention I-485 but it doesn't seem like you have a "temporary" intent if you intend to file I-485.

It does seem like you should be able to enter on O-1 while you do Consular Processing abroad.