140 denied, AP use by my wife

M

marooti

Registered Users (C)
I am on my 7th year H1. My 140 was denied by NSC. I have a very unique situation here (I guess).
When my wife went to india last time she gave her papers to VFS in Mumbai for H4 stamping. But the Passport photo dimensions were not correct so VFS delayed her stamping. She also had Advanced Parole at the time. Due to shortage of time she just withdrew her file for H4 stamping and came to US on Advanced Parole. But VFS put a cancelled stamped on her already expired visa.
Now, my green card is in a limbo because I140 got denied and my wife wishes to travel to india and get her H4 visa stamped again. My question is, will she have any problem getting a new stamping because VFS put a cancelled stamp on her old H4 visa stamping?

I had read at many places and also confirmed with my lawyer that even if we use AP we can still retain our H status. She or I never used our EAD.

Thanks-
 
marooti said:
I am on my 7th year H1. My 140 was denied by NSC. I have a very unique situation here (I guess).
When my wife went to india last time she gave her papers to VFS in Mumbai for H4 stamping. But the Passport photo dimensions were not correct so VFS delayed her stamping. She also had Advanced Parole at the time. Due to shortage of time she just withdrew her file for H4 stamping and came to US on Advanced Parole. But VFS put a cancelled stamped on her already expired visa.
Now, my green card is in a limbo because I140 got denied and my wife wishes to travel to india and get her H4 visa stamped again. My question is, will she have any problem getting a new stamping because VFS put a cancelled stamp on her old H4 visa stamping?

I had read at many places and also confirmed with my lawyer that even if we use AP we can still retain our H status. She or I never used our EAD.

Thanks-
Click to expand...

Hi Marooti,
Even after appeal (MTR) did your 140 denied? Could you please let me know why it has been denied with little more information. I too have 3 year engineering degree. But my evaluation has been done in such a way that the degree it is equivalent to US degree without any combinations. I know I am asking you a question instead of replying your question. Please take some time to explain us.
Thanks and Sincerly
KK
 
Marooti,
I am sorry to hear about Ur case -- but there is still hopes as U have moved to reopen the case..

Regarding Ur wife the attorney is correct.
[An H visa holder who has entered the U.S. with an advance parole document may depart and return as an H holder if that status has not expired.]
So basically U all are safe...

But may I ask U one question: why do U want to get stamped... ? There is long wait in Mumbai and the expense?


Good luck
eBhola
 
As per my attorney once you have used AP or EAD.. you have taken the benefit of filing the I485.. which means your H1 status is not valid anymore.
My friend's attorney also said the same. So please make sure before risking anything. And dont go 100% by whats in this forums.. everyone gives their opinion. YOU MUST CONTACT AN ATTORNEY FOR THE CORRECT ADVICE.
 
saathvika said:
As per my attorney once you have used AP or EAD.. you have taken the benefit of filing the I485.. which means your H1 status is not valid anymore.
My friend's attorney also said the same. So please make sure before risking anything. And dont go 100% by whats in this forums.. everyone gives their opinion. YOU MUST CONTACT AN ATTORNEY FOR THE CORRECT ADVICE.
Click to expand...

If your wife has used AP and you didn't use your AP, you are safe on H1.

Abvout your wife's status, she can stay here as a dependent to you. But, if she goes out of the country, she need to get stamped.
 
eBhola said:
Marooti,
I am sorry to hear about Ur case -- but there is still hopes as U have moved to reopen the case..

Regarding Ur wife the attorney is correct.
[An H visa holder who has entered the U.S. with an advance parole document may depart and return as an H holder if that status has not expired.]
So basically U all are safe...

But may I ask U one question: why do U want to get stamped... ? There is long wait in Mumbai and the expense?


Good luck
eBhola
Click to expand...



ebhola,
My wife is going to india for 3 months with our new born daughter. She has taken the appointment already. Thanks for your response.

saathvika, I have confirmed this with my lawyer that she still has H4 status ... AP just acts as a traveling document when your status is being adjusted. Please let me know if your lawyer has a proof that using AP will make one lose the H status.
 
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Better not go.

My lawyer told me that once used AP or EAD, H status is not valid any more.

I guess your lawyer has a different opinion, so my suggestion would be to play safe. Your wife is better not go to india.

BTW, I got my I140 approved and have AP, but I still don't plan to go back to my country although I want to badly. I want to be 100% sure.

Good luck with your I140 appeal.

fiveice
 
fiveice,
If that is the case then why would BCIS issue her 7th year H4 extension? She has her H4 extension notice. Please ask your lawyer once again to confirm this.
The only glitch is that her old Visa Stamp was marked as "Cancelled - Application Withdrwan" at the Port of Entry.
 
fiveice said:
My lawyer told me that once used AP or EAD, H status is not valid any more.
Click to expand...


I thought H status is canceled using EAD and not coming on AP.
 
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-- Status --

Is this how it Played out for U -->

Your wife went to home country...
Entered USA using AP.
U applied for H1b 7th year extension for Urself and H4 for wife.
Both got approved.

In the above case -- the H4 takes the precedence over every thing. So Ur wife status is H4 and she can get stamped again.

The other case may be ---
U applied for H1b 7th year extension for Urself and H4 for wife.
Ur wife had AP too.
She went to home country.
Used AP to get back to US.

Now in this case the H4 is valid if it has not expired. She has the valid I-94 which she may have to turn it over at the airport.. Then gets stamped in home country to enter US back.

For dependent in some area things are quasi defined .. Like if you get an AP and EAD for Urself --- and do not get a EAD for Ur spouse as does not want to work... Ur H1b has expired ... then what is Ur wife's status ... some say awaiting AOS. Here the spouse does not have any written thing to define the status .. But in the same situation if the h4 is still valid --- her status is H4 ... till she runs of the validity period.

I may be wrong in some areas -- I would like to have an debate in this issue which might help the community in making decisions.

Thanks.
 
Billtoo said:
Is this how it Played out for U -->

Your wife went to home country...
Entered USA using AP.
U applied for H1b 7th year extension for Urself and H4 for wife.
Both got approved.

In the above case -- the H4 takes the precedence over every thing. So Ur wife status is H4 and she can get stamped again.
- I had the above case.
My AP came thru while I was in my 5th year extension.
My wife used her AP in my 6th year of H1.
Then my 7th year H1 and H4 for my wife were approved on the basis of MTR for I-140.
Now, at the port of entry in Detroit, immigration authorities stamped her visa with "Cancelled - Applicaation Withdrawn". This is the only concern I have now. If mumbai consulate sees this on the old visa then will they give her renewed stamping? My concern has multiplied because Mumbai consulate rejects visas even for a minor issue (add to it the not so lucky times I have been going thru!).



The other case may be ---
U applied for H1b 7th year extension for Urself and H4 for wife.
Ur wife had AP too.
She went to home country.
Used AP to get back to US.

Now in this case the H4 is valid if it has not expired. She has the valid I-94 which she may have to turn it over at the airport.. Then gets stamped in home country to enter US back.

For dependent in some area things are quasi defined .. Like if you get an AP and EAD for Urself --- and do not get a EAD for Ur spouse as does not want to work... Ur H1b has expired ... then what is Ur wife's status ... some say awaiting AOS. Here the spouse does not have any written thing to define the status .. But in the same situation if the h4 is still valid --- her status is H4 ... till she runs of the validity period.

I may be wrong in some areas -- I would like to have an debate in this issue which might help the community in making decisions.

Thanks.
Click to expand...
 
H4

If mumbai consulate sees this on the old visa then will they give her renewed stamping? My concern has multiplied because Mumbai consulate rejects visas even for a minor issue.
Click to expand...

H4 they do not usually reject -- Only rejections I have ever seen is not been able to prove a legal marriage to H1b holder.
They may ask why the application was withdraw -- U have the answer to it -- so it must be cool for Ur wife

Good luck and do post what happens in this process.

eBhola
 
H1 & H4 Validty if AP used

http://www.immigrationportal.com/sh...threadid=119229

There is no clear answer about AP use , but read the info from above said link.I have traveled more than once with AP , still I am on H1 ( which I dont want , but hope NSC guys hear this ) .

In essecne, you maintain your H status even if you use AP - provided you are with the same employer .

- Kahuna

I am a stupid engineer with -1 % immigration law knowledge.
 
kahuna,
was your H1 visa stamped as "cancelled - Application Withdrawn" on your passport at the port of entry? If yes, then did you ever get your passport stamped again with H1 visa? (I am sure you didn't need it because you must be getting your AP renewed)
thanks
 
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Marooti,

My case much simpler had H1 renewed with same employer ( but not stamped on passport) . Like someone mentioend in this thread, H4 stamping is much simpler than the H1 stamping.

Just curious - I am not sure why people have diffrent opinion about AP : If AP is provided by INS for travel - then why people make a big issue about using AP ( provided by INS ).

- Kahuna



marooti said:
kahuna,
was your H1 visa stamped as "cancelled - Application Withdrawn" on your passport at the port of entry? If yes, then did you ever get your passport stamped again with H1 visa? (I am sure you didn't need it because you must be getting your AP renewed)
thanks
Click to expand...
 
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