Travel on AP with I 485 pending

E

ebebeb1

Registered Users (C)
Hi Guys,
a question about travel on AP.
As I had earlier stated I have recent approvals for EB1A and NIW I 140s. I am from a retrogressed country and as part of the July fiasco I had filed I 485 with EAD and AP applications, linked to the NIW petition.
I am in possession of the EAD and the AP. I have till now stayed on H1B (paid 1000 bucks to expedite I 129). No plans to go to EAD status.
I am travelling to India in December, my H1b stamp has expired plus I have changed employers.
My question:
Do I need to get a visa stamped at the Consulate to re enter USA?
I have been told by a friend that I can re enter at the airport carrying the AP and the H1 I797 and no valid visa and still retain H1 status.
Does any one has answers to this
Thanks!
 
He is right. Keep in mind that using AP would(MAY) trigger RFE on your i-485 like current employment, status etc.. but surely you do not loose your H1 status.
 
AP travel & H1b status

U may geopardize your H1B status by entering US using AP. Please see todays immigration-law.com breaking news.
Application vs. Use of EAD or Advance Parole: Applying for and obtaining approval of EAD or Advance Parole does not affect the 485 applicant's "nonimmigrant status" including H and L. However, once the alien starts work using an EAD or travels on Advance Parole, the alien is considered no longer in a nonimmigrant status including H and L.
 
Yes,What pharmacy was saying is true. That was true at least in my case. I entered US using AP, before I left I contacted immigration affairs here in my university and they advice that I should use EAD once I come back, and also said that the law is not really clear about this situation, so on a safe side they asked me to use the EAD. Same was my attorneys opinion. I just followed what they said. I came back and signed a new I 9 from (payroll Department) and then started working on EAD. Very recently I also started using my second EAD. (pain is you have sign your I 9 from every year)
Remember one thing, I saw on this site as well as other sites like this that, when you are entering US using AP, some times the immigration officer at the immigration counter at the port of entry will ask to see your EAD! card. So I suggest you take your EAD if you have one with you. Though they did not ask me to see the EAD card. Anyways I believe it is safe to carry your EAD card if you have one. I am not sure how you handle a situation where you don't have your EAD and have only AP?
 
Rama_9193 is absolutely right. I came back to US on AP twice (once in June'07 and again in August'07). I was asked to produce my EAD card on both the occasions and in addition, i was asked to show my visiting card or employment letter.
 
I am really confused now. I spoke to my Intl office after reading all above very helpful advise. They said that since I have H1b approval notice, and have approved AP (which I received yesterday), I can reenter US with both those docs. They specifically said that they will not cancel my H1b and I will continue working on that after my reentry. My lawyer said the same. In fact, my husband has pending H1b and he is working right now in the same univ on the basis on H1b portablility and the Intl office said it would be OK for him to also reenter US with AP and the H1b will still be pending approval. Not revoked. But we should hear abt his H1b before we leave.
My intl office personnel has some kind of meeting with VSC next week and she told that she will calrify all these specific issues. I will keep this forum updated. It might help others in the future.
 
Ok here is the deal. I think this is very simple: is your H1B still valid when you're coming back to the US? If it is, why do you want to use your AP? If it is not, you are entering the country via different immigration status, i.e., pending green card applicant using your AP. You are no longer under H1B. You cannot have multiple status effective at the same time. When you use your AP at the port of entery, they enter this information to their database and USCIS expects you to use your EAD from now on. You cannot go back and forth between your H1B and AP. I traveled abroad few times using my AP and I lost my H1B status based on this. My lawyer also made sure that I understand this and use my EAD afterwards.

Hope this helps!
 
Thanks Garemani! I do have valid H1b notice of action, its just that I need to get it stamped. I just wanted to avoid the hassle of going to US consulate (in a different city than mine) in my rather short two week trip. And use AP to enter the country instead of visa stamp. But with all the suggestions, I will definitely go thru the H1b stamping. Don't want to depend on pending 485 linked to pending i140.
Thanks!
 
Thanks everyone for the fascinating responses.
I had the same problems as the previous poster: During a short trip to my home country I have to go to another city for visa stamping.
Applying for your own green card through the NIW and EB1 routes is tough since it is very complicated and we do our own brain work.
I want to be very conservative. My idea to saty on H1 is because the I485 is still pending and the USCIS in it;s inscrutible way may reject the petition.
I probably will take the extra trouble of going to the consulate and getting the visa stamped....its just expensive and tiresome.
 
i'm also on the same boat... even I'm planning to get my H1-B stamped on my passport... and use it to enter US next time instead of using the AP. i'm not too sure of my wife's case though. she was on F-1 when we applied for I-485. i'm not sure if using F-1 to enter the US next time would revoke her I-485 petition since it would mean dual intent... any suggestion or thoughts?? Thanks!
 
YES SIR, I asked my university council regarding this, They have clearly explained that using AP would definitely revoke your H1B. As Rama mentioned clearly when you show your AP, they would immediately ask your EAD whether you have validity. The university has also CONFIRMED WITH VERMONT service center that AP will result in the loss of H1 or any visa status.
 
What skvadivel is writing is simply not true. Please consult with a lawyer before taking bad advise from here. Using AP does not invalidate your H1B status, but you might be asked at the border to show your I-485 related EAD. You can continue working in H1B status (WITHOUT relying on your I-485 related EAD) with your current employer. But again, don't listen to me or anyone else here. Go talk to a lawyer before you potentially make a poor choice.

See also here: http://boards.immigrationportal.com/showthread.php?t=197233
 
However the Cronin memorandum does say this:

"If the alien is not admissible as an H-1 or L-1 nonimmigrant, then he or she cannot be readmitted as an H-1 or L-1 nonimmigrant. Instead, such an alien may be paroled into the United States."

So there are two ways to think about this:
1. If you do not have an H1B stamp but are carrying a valid H1B I797 are you not admissable and therefore an AP candidate
or
2. Having the I797 will make you admissable along with AP and H1 B status is preserved.

Does anyone have comments......
 
I spoke with my lawyer and my univ Intl office. Both said that I will not loose H1b status if I am paroled into US. Yes, the port officer will ask for my EAD, but that does not mean I have lost my H1b 797 notice of action approval. AP just replaces H1b visa stamp, not H1b status. This is not true for EAD use. My Intl office reassured me that they will not ask for EAD card once I return to US after being paroled in. If time permits i will get H1b stamp in India. Otherwise, I am pretty confident now that my H1b will not be revoked.
Any comments???
 
eb2niw140,
As I said previously and would like to reiterate here again. The law on this is not clear. One has to follow the legal and official advice they receive which is nothing but interpretation. If I were you I would do what I was told to do. As in part of caution, I would suggest that you get the advice through email, with your international affairs as well as attorney and make copies of it and also save these documents, they will be of help if you might need them. Apart from that, I wish you good luck on your travel and enjoy your time abroad.
Good Luck
Rama
 
Dear Rama,
Thanks so much for your thoughtful advice. If time permits I will definitely get H1b stamping. I will also print out the email communications regarding this issue from my lawyer and intl office.
 
FYI
getting h-1b stamp is always a good option. however, if you are working as a researcher in univ/lab and go to get h-1 stamping, it is possible that your visa stamping gets delayed under 221 (g) for background checks. just be aware of this. i got stuck for 6 weeks in late 2004 when i was working in national lab, and i know it was frequent atleast until 2005. i'm not sure of the frequency of 221(g)s nowadays tho'.
 
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