Need advice on an emergency travel situation

[shiva_82]

I am adjusting my status from a L1A through EB1C. My wife had to travel due to her father's death. My L1A just expired and an extension was applied just a week back. As the death happened today and as my wife had to travel immediately, she couldn't get an emergency AP based on her pending 485. Our EAD/AP application is also still pending.

I was hoping to get emergency AP for me and my son so that we can travel in a few days. At that time when I will be requesting an emergency AP, I was hoping that I could request for the officer to issue an emergency AP for my wife who had to leave due to this emergency.

Can you please advice on

1. Will my wife be considered to have abandoned her AOS?
2. Are there any other options for my wife to travel back without impacting her AOS processing?

[Enub4]

I'm sorry for your loss. I hope someone with experience can answer you.

From what I read, anyone traveling abroad without an AP or a valid dual intent visa will render their AOS abandoned. I guess if she travels and then you travel with an emergency AP, you can return and then change her process to consular processing. She will need to stay abroad for the time it takes to get an interview and get an immigrant visa.

[mattman]

I would try getting in contact with congressman and see what they can do to help.

[newacct]

The best option is probably for her to wait until your new L1 petition is approved, and then she enters the US with an L2 visa.

As to the question of whether her I-485 is considered abandoned in that case, that is unclear. The rules say that if she had L2 status right before leaving and returns on an L2 visa, her I-485 is not abandoned, but since your L1 status (and thus her L2 status) had expired a week ago, she wouldn't have had L2 status right before leaving. Her pending extension of stay would be considered abandoned due to her leaving, so she wouldn't be able to get status retroactively granted to the time right before she left anyway.

In any case, if she manages to return to the US, even if the I-485 is considered abandoned, she can just file another I-485.

[shiva_82]

The best option is probably for her to wait until your new L1 petition is approved, and then she enters the US with an L2 visa.

As to the question of whether her I-485 is considered abandoned in that case, that is unclear. The rules say that if she had L2 status right before leaving and returns on an L2 visa, her I-485 is not abandoned, but since your L1 status (and thus her L2 status) had expired a week ago, she wouldn't have had L2 status right before leaving. Her pending extension of stay would be considered abandoned due to her leaving, so she wouldn't be able to get status retroactively granted to the time right before she left anyway.

In any case, if she manages to return to the US, even if the I-485 is considered abandoned, she can just file another I-485.

Actually our visa was still valid yesterday when she left. Our I-94 doesn't expire until 11/16.

Thanks for your response. Can I premium process my L1 application and then based on the approval can she still enter on L2 or will that be considered abandoned too? Considering our status was valid until yesterday when she left, her 485 might not be considered abandoned?

Also, when she comes back and we apply for GC, what category will that be in? Will it be in EB1C as well even if I had got my GC then already?

[shiva_82]

I would try getting in contact with congressman and see what they can do to help.

Thank you. How do I know who my congressman is?

[shiva_82]

I'm sorry for your loss. I hope someone with experience can answer you.

From what I read, anyone traveling abroad without an AP or a valid dual intent visa will render their AOS abandoned. I guess if she travels and then you travel with an emergency AP, you can return and then change her process to consular processing. She will need to stay abroad for the time it takes to get an interview and get an immigrant visa.

Thanks. It is good to know that she has a way to return back to US. I was worried that she might not be able to return.

[shiva_82]

Have any of you noticed an an emergency AP being approved after someone had left the US on humanitarian grounds? I'm requesting for the same through my local congressman while USCIS live agent said it is not possible as the travel happened prior to requesting an emergency AP

Any inputs?

[mattman]

I think your best chance at this is through your congressman’s office. If anyone can pull strings on humanitarian grounds it will be them. Fingers crossed for you!

[shiva_82]

I think your best chance at this is through your congressman’s office. If anyone can pull strings on humanitarian grounds it will be them. Fingers crossed for you!

Thank you. I reached out to the local congressman requesting for help. Let's see. Do you know typically how long they take to escalate or request to USCIS?

[randUser9]

2. Are there any other options for my wife to travel back without impacting her AOS processing?

Not legal advice. But she has to enter on L2, which could mean you have to be on L1 (and not use your AP to enter). Be advised, you should also check visa appointment availability at US embassy in your country.

[shiva_82]

Not legal advice. But she has to enter on L2, which could mean you have to be on L1 (and not use your AP to enter). Be advised, you should also check visa appointment availability at US embassy in your country.

But I would still be keeping my L1 status even if I enter using my AP. Technically until I'm on GC, I can keep my non immigrant status as well, correct?

[randUser9]

But I would still be keeping my L1 status even if I enter using my AP. Technically until I'm on GC, I can keep my non immigrant status as well, correct?

They advice against it. It seems to be along the same lines as using EAD for job (change or otherwise) ends your H1/L1 status.

[shiva_82]

They advice against it. It seems to be along the same lines as using EAD for job (change or otherwise) ends your H1/L1 status.

Thank you. Have you seen anyone being given an AP for traveling back while they have already left the country without an approved AP? I can may be avoid traveling and would at least want an emergency AP for my wife to be able to come back. She is currently outside US without an AP

[randUser9]

Thank you. Have you seen anyone being given an AP for traveling back while they have already left the country without an approved AP? I can may be avoid traveling and would at least want an emergency AP for my wife to be able to come back. She is currently outside US without an AP

I have no idea about that. I think L2 is her best chance. Will keep her application going.
Or maybe consult a lawyer if there are other options.