Help: AP travel and H1B reinstate

[TroySJ]

Hi,

I am from Iran and going out and getting my visa stamp is not an option. I came on F1 applying from a third party country and then I had to wait 4 months for security clearance. So getting the visa stamp is not an option for me. I have to get in to the states by AP anyways.

What confused me was that Ginnu said I do not need to get my Passport stamped, from what I know this process should be doable inside the states by reinstating H1B, which I don't understand what it means.

So any help would be appreciated,

thanks

troy looks like you are fully confused man. I know your difficulty, u do not want to go for H1 stampping. but in this case if u dependent want to get h4 visa, u may have to go and get h1 stampped first, unless ur case is lucky and consulate over look and give h4 visa. all the best. which country u r from. how did u get ur first h1 visa without having embassy in ur country. just curious.

 

[ginnu]

Hi,

I have come to the states using AP. I cannot enter the states usiing H1B due to my country of birth, it is not easy for me to come to the states using Visa as I will need security clearance (which will take very long >3 months) and there is no US embassy in my country... thats the only reason that I had to enter the states on H1B.

My main concern now is my I140 is stamped as parole

-----------------------You are confused and wrong. who told you that your I-140 is stamped as Parole???? you need to seee a lawyer and clear your questions.


so can my wife enter the states using H4 or not.

Thanks

Troy

---------- Khalil Gibran was not confused why you are confused? if still confused go to your lawyer and find the answer .

 

[ginnu]

Thank you very much for your replies...ginnu and perm_lc.

I think i'll continue to stay in EAD (ie., in AOS) and use EAD if i want to go back to previous company.

Being in AOS...can i able stay without job for shorter time in future (say 2 to 3 months).
-------------------------YES
When i'm between the projects...if i get RFE for my I-485 for any reason...what should i do at that time ?.
----------that depends on RFE
Is just providing/submitting offer letter and last 1 or 2 pay stubs is sufficient ?.
----------------that is for AC21, if they ask

What will happen...just in case...if i don't have the latest paystubs ?.
------------------paystubs are not must for AC21 but if the USCIS ask then you need to send. they ask Paystubs only to know if the new company is paying you or can pay you.
Please clarify.

By the way my PD (Apr 06) will become current in Aug 07 (day after tomorrow). I'd filed my I-485 in July 07 and we didn't receive the FP yet. Is it something normal...? I'm planning to get Infopass appt sometime soon and check what's going on with this.
In Infopass appt can i ask the officer whether my Name Check has been cleared (or) not ?.
-------------------you can (take your I-485 filing reciept with you)
Thank you guys...in advance!

------------------

 

[satgym73]

Thank you...ginnu...for the clear answers.

------------------

 

[TroySJ]

Hi Ginnu,

This I 140 was a typo, I meant I94. Here I am not confused. I am asking a very straight question, and it is very important for me to know the answer. I would be very thankful if you could answer my question.

About talking to a lawyer, I will definitely do that, however from my experience. If I don't know all the right questions and I do not know some details most of the time my talk to a lawyer come to be fruitless.

So, Let me re state my question clearly and If you can asnwer this question that would be great.

I have left the US a couple of weeks ago got married and returned on AP. So as a result of that my I94 is stamped as Parole. I can not go out of the country and stamp my H1B in my passport and get a new I94. It is not an option for me due the country of birth.

I have heard that due to this the consulate may refuse to issue an H4 for my dependent because of the Parole stamp of primary, To avoid that I was suggested to reinstate H1B. (Is this statement correct?)

If the statement above is correct, Is there an option to reinsteate H1B in the states? Whats the procedure and how long it will take?

Thank you very much for your help

Troy

---------- Khalil Gibran was not confused why you are confused? if still confused go to your lawyer and find the answer .

 

[perm_lc]

Hi Ginnu,

This I 140 was a typo, I meant I94. Here I am not confused. I am asking a very straight question, and it is very important for me to know the answer. I would be very thankful if you could answer my question.

About talking to a lawyer, I will definitely do that, however from my experience. If I don't know all the right questions and I do not know some details most of the time my talk to a lawyer come to be fruitless.

So, Let me re state my question clearly and If you can asnwer this question that would be great.

I have left the US a couple of weeks ago got married and returned on AP. So as a result of that my I94 is stamped as Parole. I can not go out of the country and stamp my H1B in my passport and get a new I94. It is not an option for me due the country of birth.

I have heard that due to this the consulate may refuse to issue an H4 for my dependent because of the Parole stamp of primary, To avoid that I was suggested to reinstate H1B. (Is this statement correct?)

If the statement above is correct, Is there an option to reinsteate H1B in the states? Whats the procedure and how long it will take?

Thank you very much for your help

Troy

Though, you entered to USA with a new I-94 with "parole" stamp you are still in H1B status based on USCIS memo. This is only good for continuation of your previous H1B employment after you entered in "prole" travel document. However, if you send your latest I-94 for your wife's H4 visa, the consular officer might get confused about your status. It is very difficult to know the depth of knowlegde of consular officer abroad on the dual status memo. If they feel that you are a pure "prolee/AOS" based on your I-94 then they may reject your wif's H4. It is better to consult an attorney.

 

[ginnu]

Hi Ginnu,

This I 140 was a typo, I meant I94. Here I am not confused. I am asking a very straight question, and it is very important for me to know the answer. I would be very thankful if you could answer my question.

About talking to a lawyer, I will definitely do that, however from my experience. If I don't know all the right questions and I do not know some details most of the time my talk to a lawyer come to be fruitless.

So, Let me re state my question clearly and If you can asnwer this question that would be great.

I have left the US a couple of weeks ago got married and returned on AP. So as a result of that my I94 is stamped as Parole. I can not go out of the country and stamp my H1B in my passport and get a new I94. It is not an option for me due the country of birth.

I have heard that due to this the consulate may refuse to issue an H4 for my dependent because of the Parole stamp of primary, To avoid that I was suggested to reinstate H1B. (Is this statement correct?)

If the statement above is correct, Is there an option to reinsteate H1B in the states? Whats the procedure and how long it will take?

Thank you very much for your help

Troy

"I was suggested to reinstate H1B" who told you that???

 

[TroySJ]

Hi Ginnu,

I read about it on this forum, and heard about it from friends who heard from some lawyer and ..... Because the sources are not reliable I am asking the question now on this forum to see if anyone knows about it, I so thats why my question below is ( is this statement correct?). So can you answer this

I have heard that due to this the consulate may refuse to issue an H4 for my dependent because of the Parole stamp of primary, To avoid that I was suggested to reinstate H1B. (Is this statement correct?)

To split the question above:
1. Does my wife have any problem comming on H4?
2. If yes, Whats the solution?

Thank you very much for your help

Troy

"I was suggested to reinstate H1B" who told you that???

 

[TheRealCanadian]

I have heard that due to this the consulate may refuse to issue an H4 for my dependent because of the Parole stamp of primary, To avoid that I was suggested to reinstate H1B. (Is this statement correct?)

It wouldn't surprise me if this was the case. The consulate could legitimately say that if you were in H-1 status, you'd logically have an I-94 stating so. The Cronin Memorandum, as far as I can tell, indicates that one can return back to H-1 status but that this is not automatic, and a person entering using AP is not in H-1 status until USCIS changes the status and issues a new I-94.

If the consulate will not issue an H-4, the H-1 spouse may need to file an I-539 requesting a change of status to H-1 for the remaining time left on the approved petition, then send a copy of the new I-94 once approved.

 

[TroySJ]

Hi,

Thanks alot RealCanadian,

Do you know about the procedure of I-539? and how long it will take? My main worry is that I get my 485 approved before my wife canenter the US on H4. (My PD is current).

Are there other options to avoid this? any suggestion?

Many thanks,

Troy

It wouldn't surprise me if this was the case. The consulate could legitimately say that if you were in H-1 status, you'd logically have an I-94 stating so. The Cronin Memorandum, as far as I can tell, indicates that one can return back to H-1 status but that this is not automatic, and a person entering using AP is not in H-1 status until USCIS changes the status and issues a new I-94.

If the consulate will not issue an H-4, the H-1 spouse may need to file an I-539 requesting a change of status to H-1 for the remaining time left on the approved petition, then send a copy of the new I-94 once approved.

 

[perm_lc]

It wouldn't surprise me if this was the case. The consulate could legitimately say that if you were in H-1 status, you'd logically have an I-94 stating so. The Cronin Memorandum, as far as I can tell, indicates that one can return back to H-1 status but that this is not automatic, and a person entering using AP is not in H-1 status until USCIS changes the status and issues a new I-94.

If the consulate will not issue an H-4, the H-1 spouse may need to file an I-539 requesting a change of status to H-1 for the remaining time left on the approved petition, then send a copy of the new I-94 once approved.

I doubt one can apply COS inside US from AOS/parolee to any non-immigrant status like H1. I think COS is applicable only to extend/switch with in non-immigrant visa catagories; of course AOS/parolee is not a non-immigrant catagory as per his I-94.

Form I-539 purpose is "You should use this form if you are one of the nonimmigrants listed below and wish to apply to U.S. Citizenship and Immigration Services (USCIS) for an extension of stay, or a change to another nonimmigrant status."

His case is tricky. As per dual staus memo he can resume/extend the work with H1B without any work authorization after entered in parol. It does not mean that one has non-immigrant status after paroled. USCIS has nowhere clearly said in the memo one is maintaining non-immigrant status after paroled. If I-94 is the sole document that determines the "status", his wife cant apply H4. Other than he receives a new I-94 with H1B stamp, it is not easy. The only way to get a new I-94 with H1B is, to leave the country and enter the country with H1B visa.

 

[TheRealCanadian]

Do you know about the procedure of I-539? and how long it will take? My main worry is that I get my 485 approved before my wife canenter the US on H4. (My PD is current).

The processing times for I-539s vary depending on the service center. You can check them out at the USCIS processing times page. You'd send in an I-539, along with a copy of your I-129 approval notice.

Are there other options to avoid this? any suggestion?

Leave the US, adn schedule a visa interview with your wife. You'd get an H-1, she'd get an H-4 and you enter together.

 

[TheRealCanadian]

I doubt one can apply COS inside US from AOS/parolee to any non-immigrant status like H1. I think COS is applicable only with in non-immigrant visa catagories, of course AOS/parolee is not a non-immigrant catagory.

If this wasn't possible, then the Cronin Memrandum would not exist. The Cronin Memorandum clearly indicates that one can switch from parolee to H-1.

 

[perm_lc]

. The Cronin Memorandum clearly indicates that one can switch from parolee to H-1.

---

 

[TheRealCanadian]

I dont see in the memo. Can you post please?

Question 3 clearly states that the extension of the H/L petition terminates the grant of parole and changes the alien's status to H/L. Therefore, it is possible to change from parolee to H/L; I've never heard of anyone doing it via an I-539, but there's no legal impediment that I can see.

 

[perm_lc]

Question 3 clearly states that the extension of the H/L petition terminates the grant of parole and changes the alien's status to H/L. Therefore, it is possible to change from parolee to H/L; I've never heard of anyone doing it via an I-539, but there's no legal impediment that I can see.

I see only the extension of H1B after parole in that Q&A. It says, one can only extend the status and thus can get a new I-94 with H1B, by terminating the parole status. In order to do that, he has to file the extension of H1B; not change of status. However his current H1B is vaild till 2010. So he cant apply the extension now.

3. If an H-1 or L-1 nonimmigrant has traveled abroad and was paroled into the United States via advance parole, the alien is accordingly in parole status. Does this interim rule allow him or her to now apply for an extension of nonimmigrant status?


Until the final rule is published, an alien who was an H-1 or L-1 nonimmigrant, but who was paroled pursuant to a grant of advance parole, may apply for an extension of H-1 or L-1 status, if there is a valid and approved petition. If the Service determines the alien's application for an extension of nonimmigrant status, the decision granting such an extension will have the effect of terminating the grant of parole and admitting the alien in the relevant nonimmigrant classification

 

[TheRealCanadian]

I see only the extension of H1B after parole in that Q&A. It says, one can only extend the status and thus can get a new I-94 with H1B, by terminating the parole status. In order to do that, he has to file the extension of H1B; not change of status.

The Cronin Memorandum does not refer to changes of status, I agree. But why would it? It clearly states that an alien does not need to change status to H/L if he merely wants to continue working.

Just because the Memorandum doesn't explicitly refer to a change of status petition, doesn't mean that one is not permitted. It's clearly opened the door to switching from parolee to non-immigrant when extending status, therefore it seems logical that one could do so prior to petition expiration.

Because all that's happening when the petition is extended is the equivalent of the employer filing an i-129 to extend the petition, and the alien filing an I-539 to extend status based on said petition.

 

[perm_lc]

The Cronin Memorandum does not refer to changes of status, I agree. But why would it? It clearly states that an alien does not need to change status to H/L if he merely wants to continue working.

Just because the Memorandum doesn't explicitly refer to a change of status petition, doesn't mean that one is not permitted. It's clearly opened the door to switching from parolee to non-immigrant when extending status, therefore it seems logical that one could do so prior to petition expiration.

Because all that's happening when the petition is extended is the equivalent of the employer filing an i-129 to extend the petition, and the alien filing an I-539 to extend status based on said petition.

I completly agree with your logic. However, no one knows how the USCIS adjudicaters or consular officers abrod visualize the situation or how much knowlege they have on this to grant favorable determination for this guy. If he files I-539 to have COS to H1 from parolee; it is not a conventional request. An extensive lawyering required in the support letter. Also, what justification he provides in filing COS, as he can very well work on H1B till 2010 (as per memo) without any action from him now. The main objective of this guy is to bring his wife in H4. Unless he has valid I-94 with H1 stamp, it will be tricky. I dont know howmuch he can sell the "h4 stamping" reason for the justification for COS from parolee to H1, by applying I-539.

 

[TheRealCanadian]

The main objective of this guy is to bring his wife in H4. Unlsess he has valid I-94 with H1 stamp, it will be tricky.

Absolutely. If he wants a guaranteed and predictable positive outcome, he needs to leave the US and get a stamp with his wife, then re-enter.

 

[TroySJ]

Hi Real Canadian and perm_lc,

Thank you very much for your help and information.

One thing that I do not understand is, If the consular gets confused on my I94 when he want to issue H4 for my wife, wouldn't it be the same if he wants to stamp my H1B? wouldn't he ask you are Parole , why do you think you are on H1B? Aren't these two the same situations?

I don't knwo exactly how stamping the H1B in the passport work.As I mentioned before, I am from Iran and for us we need to go throught the security clearance process before getting the Visa stamped which may potentially take months. That means even if they want to issue the Visa they will ask us to come back after the background check is done.

Do you think if It works if my wife and I go there together to get the H1B stamped but after initiating the security clearance I return to the states using AP again.

Please help if you have any idea of how to do this?

many thanks,

Troy

Absolutely. If he wants a guaranteed and predictable positive outcome, he needs to leave the US and get a stamp with his wife, then re-enter.