One of the toughest periods for our clients is the I-485 pending period. During this time, our office is frequently asked by clients to contact USCIS or receive RFEs for our clients’ pending cases, and we are required to deal directly with USCIS. While it is widely believed that, as a large government agency, the USCIS is unfriendly or difficult, it has been our experience that, with professionalism and clear understanding of immigration laws, working with USCIS on a pending cases can be a positive experience.
One of our I-485 pending clients left America for an academic conference without an approved I-131 re-entry permit. When he was about to apply for a new H-1B visa to return to the US, he encountered a background investigation because of the sensitive nature of his research area. He was stranded in his home country waiting for visa approval.
Dr. Li was doing research work in a company, and his employer was willing to support his Green Card application. He retained our firm for his EB-1B and I-485 adjustment of status applications. In December 2008, we filed Dr. Li’s EB-1B and I-485 application with the USCIS, as well as his I-765 EAD and I-131 re-entry applications. Normally, the processing time for the I-131 application is about three months. In January 2009, Dr. Li was invited at the last minute to his home country to take part in a symposium. Since this was a rare and significant opportunity, he went back with no time to wait for the approval of his I-131 petition. However, as mentioned above, when he applied for an H-1B visa at the US consulate abroad, he encountered a background investigation, and he was not able to return to the US until now, several months later.
Three months after the initial filing, Dr. Li’s EB-1B petition was approved, as well as his I-131 Re-entry permit petition. However, the USCIS issued an RFE for his I-485 application, requiring a TST test report. Considering Dr. Li was still in China and could not go back to the US for the test, we replied to the USCIS and requesting an extension of the RFE reply period.
At this point in the story, some people might wonder why, with his I-131 petition approved in February, Dr. Li could not come back to the US by this approved I-131?
The answer, in general, when an alien’s I-485 applicant is pending, he /she must hold an approved re-entry permit when he/ she leave the US, or the USCIS will consider that he/she has abandoned the I-485 application. In Dr. Li’s case, as his I-131 petition was approved after he left, Dr. Li could not use the I-131 to re-enter the US because he did not hold the re-entry permit prior to departure. Under these circumstances, even if Dr. Li had returned the US with the approved I-131, he would face the risk of losing status because when he left the US without the approved I-131, he was considered to have abandoned his I-485 application and thus, lost his I-485 pending status.
Dr. Li left the US without a valid re-entry permit based on a USCIS exemption for H and L visa holders. H and L status holders who travel outside the U.S. during the adjustment of status process without using advance parole do not abandon their application provided that they: (1) hold valid H or L status before leaving the U.S; (2) reenter the U.S. with a valid H or L visa stamp; and, (3) return to the same H or L employer. In this situation, an applicant resumes his/her H or L status upon reentry into the U.S. and also maintains his/her I-485 adjustment of status case. For Dr. Li, as he left the US in valid H-1B status, if he could stay in China until gets a new H-1B and goes back to the US and work for the same employer, his I-485 application will not be impacted, and he would return in H-1B status.
On March 26, Attorney Jerry Zhang, the in charge attorney of Dr. Li’s case, received a call from a USCIS officer, who told Attorney Zhang that he had received the RFE extension request. Attorney Zhang had a chat with the officer. He told the officer that Dr. Li was still trapped in China. It was hard to say when Dr. Li would receive his H-1B visa and return to the US and asked if the USCIS could extend the RFE reply period to 90 days. The officer agreed. Meanwhile, the officer mentioned that Dr. Li’s I-693 Form (Report of Medical Examination and Vaccination Record) was expired, and he would need to prepare a new one. Finally, the immigration officer mentioned that he had talked with Attorney Jane Xu of our firm several times over the telephone and had been quite impressed with her professionalism.
After the conversation, Attorney Zhang emailed Dr. Li immediately. Dr. Li was very happy and said he would come back as soon as he got the H-1B visa and prepare the materials for the RFE reply.
The telephone communication between the USCIS officer and Attorney Zhang bought time for Dr. Li’s I-485 application. Actually in our daily work, the USCIS officers often called attorneys to communicate some specific issues about certain petitions. According to the work protocol of our firm, the phone is answered by the in charge attorney of the petition in order to accelerated the application process. In many people’s minds, USCIS is a government department which is quite hard to deal with. However, in our experiences with the USCIS, we found that a lot of immigration officials are quite positive and constructive to deal with our customers’applications. We cooperated with the officers very happliy.
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Special notice:
At 10:30am~12:00pm CST on Saturday April 4, 2009, Attorney Jerry Zhang will hold a seminar in English at our Chicago office. He will talk about H-1B, NIW, EB-1, etc. If you are interested in this seminar, please click the following link to register:
http://survey.constantcontact.com/survey/a07e2ho6oxnfsoqtryc/start
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Founded in 1996, Zhang & Associates, P.C. offers legal services to clients nationwide in all aspects of U.S immigration law. We have successfully handled thousands of immigration cases.
At Zhang & Associates, P.C., our attorneys and supporting professionals are committed to providing high-quality immigration and non-immigration visa services. We specialize in NIW, EB-1, PERM, and I-485 cases. In the past twelve years, we have successfully helped thousands of clients get green cards. If you plan to apply for a green card, please send your CV to Attorney Jerry Zhang (info@hooyou.com) for a free evaluation.
Zhang & Associates, PC.
Houston ∙ New York ∙ Chicago ∙ Austin ∙ Los Angeles
Tel：1-800-230-7040, 713-771-8433
Email: info@hooyou.com
website：http://www.hooyou.com
(04/01/2009)
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