Entering on AP while H1 is pending

S

sidpri

Member
I had a question about AP/EAD/H1 which hopefully someone would be able to address.

My status: I am currently in the US, working on H1B status while my AOS is in progress. I also have valid AP and EAD documents though I am not using my EAD currently.

At present my H1 extension filing is in process, I have received the receipt about the filing, but no approval yet (there was a RFE to which we responded). I need to travel to India and there are chances that my H1 may not be approved by that time and/or I may not have enough time to schedule a consulate appointment for stamping

In such a scenario, I intend to use my AP to re-enter the US.

Questions:


1. If my H1 gets approved BEFORE I enter US...and I choose not to go to the local consulate in India for a H1 visa stamp, would I be able to enter using AP and continue to work in the US using the approved H1 petition or do I necessarily need to use EAD now that I entered using AP and do not have a valid H1 stamp on the passport.
What would be my status in either case, parolee or H1?

2. If my H1 gets approved AFTER I enter US...I guess I have to switch to EAD to work. If say one month after my return, my H1 gets approved, can I move status to H1 by filing a fresh I9 (with no new visa stamp in the passport) or do I have to re-enter the country with a stamped visa to be on H1 status

3. If my H1 is approved and I am working on EAD, would my H1 clock counter continue to tick?

Appreciate your response and would be great if you see any other concerns/watchouts

Thanks
Sid
 
Hi Sid

It is my understanding that once you use your AP you will lose your H1B status and you have to use your EAD to keep continuing working in US. It does not matter your H1B approval comes before you enter or after you enter in US. You have only two option 1. either get your H1B extension stamped from US consulate in India and enter as an H1B status or use your AP and revoke your H1B privlages and start working on EAD.

Thanks

RB
 
Op here is not indicating whwre his EAD or AP is based on? That would help answering his question better.YOu are on HIB, but what is the previous based on?
 
sidpri said:
Questions:


1. If my H1 gets approved BEFORE I enter US...and I choose not to go to the local consulate in India for a H1 visa stamp, would I be able to enter using AP and continue to work in the US using the approved H1 petition or do I necessarily need to use EAD now that I entered using AP and do not have a valid H1 stamp on the passport.
What would be my status in either case, parolee or H1?
Click to expand...


Your status would be parolee, not H-1B. However, you do NOT have to use your EAD is you intend to return to your same employer. As long as your H-1B paper is valid (the original one) when you return, you can go back to work without an EAD. You'll have to wait until you next extension (or leave the country, get a visa, and return on it) to go back to H-1B status. But as long as you have a valid H-1B document, you can work without an EAD even though you are a parolee.

sidpri said:
2. If my H1 gets approved AFTER I enter US...I guess I have to switch to EAD to work. If say one month after my return, my H1 gets approved, can I move status to H1 by filing a fresh I9 (with no new visa stamp in the passport) or do I have to re-enter the country with a stamped visa to be on H1 status
Click to expand...

In this case, you will receive a new I-94 that will be evidence that your status has now changed back to H-1B. Your most recent I-94 is the one that reflects your current status. Any older I-94s are invalid.

sidpri said:
3. If my H1 is approved and I am working on EAD, would my H1 clock counter continue to tick?
Click to expand...
This I'm not sure about, but probably not. Again, if you are working for the same H-1B sponsor and you have valid H-1B documents, you don't have to use your EAD even though you were paroled. You can also file for extensions in the future (if otherwise eligible) and regain status.

In your case, again, if you get your approval after you come back, you will be back in H-1B. Before then, you don't have to use your EAD anyway, so you'll be good to go.
 
rb2000rb65 said:
Hi Sid

It is my understanding that once you use your AP you will lose your H1B status and you have to use your EAD to keep continuing working in US. It does not matter your H1B approval comes before you enter or after you enter in US. You have only two option 1. either get your H1B extension stamped from US consulate in India and enter as an H1B status or use your AP and revoke your H1B privlages and start working on EAD.

Thanks

RB
Click to expand...

This is not true. Please google the words "Cronin Memorandum" for more information.
 
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