Advance Parole and H1B - Urgent Please..

J

JKBGC

Registered Users (C)
Hello Friends,

I have got an RFE for my H1B transfer, according to my employer, response to which will take some time. I also have valid

AP/EAD till Dec 2004. I have not received my I-140 yet. I am assuming that I will get my H1B after responding to the RFE. I have my travel plans to go to India from May 31st to Jun 15.

My Question is:

If I travel on AP, Does that mean my H1b status is over? If I want to leave my job after coming back from the trip, can I

apply the H1B transfer?

What are the disadvantages of using EAD/AP w/o I-140?

Please reply immediately, as I may need to cancel my tickets, and I have only 2 more days left for that purpose.

Thanks in ADVANCE
 
JKBGC said:
Hello Friends,

I have got an RFE for my H1B transfer, according to my employer, response to which will take some time. I also have valid

AP/EAD till Dec 2004. I have not received my I-140 yet. I am assuming that I will get my H1B after responding to the RFE. I have my travel plans to go to India from May 31st to Jun 15.

My Question is:

If I travel on AP, Does that mean my H1b status is over? If I want to leave my job after coming back from the trip, can I
using AP does not invalidate your H1. On the other hand using EAD does invalidate your H1.

apply the H1B transfer?

What are the disadvantages of using EAD/AP w/o I-140?
If I140 gets denied for some reason and if you have used EAD for working then you will be treated out of status. AP does not have any known implication other than trying to get a H1 stamping after travelling using AP

Please reply immediately, as I may need to cancel my tickets, and I have only 2 more days left for that purpose.

Thanks in ADVANCE
Click to expand...
 
Thanks a lot Titan01 for timely response.

Your comments "If I140 gets denied for some reason and if you have used EAD for working then you will be treated out of status. AP does not have any known implication other than trying to get a H1 stamping after travelling using AP" indicate that :

I cannot stamp H1 after travelling using AP. Is that so? If I want to change the job on H1B after travelling on AP - 1. Can I do that? 2. Do I need to go out of the Country to get the visa stamped again?

Titan01, is it possible that I can contact you outside of this forum?
 
JKBGC said:
Thanks a lot Titan01 for timely response.

Your comments "If I140 gets denied for some reason and if you have used EAD for working then you will be treated out of status. AP does not have any known implication other than trying to get a H1 stamping after travelling using AP" indicate that :

I cannot stamp H1 after travelling using AP. Is that so? If I want to change the job on H1B after travelling on AP - 1. Can I do that?
There is no concrete proof in this whole forum to prove that it is ok to get H1 after AP. Hopefully some one who has done similar thing would post it here.
2. Do I need to go out of the Country to get the visa stamped again
The problem is whether you can get it stamped. No matter where you stamp the problem of stamping remains, unless some one posts otherwise
Titan01, is it possible that I can contact you outside of this forum?
Click to expand...
 
Last edited by a moderator:
I checked with 2 different lawyers and both are saying this is very much possible. Once I travel on AP and later if I have the valid H1B, I can any time stamp H1B.

BTW, does someone know if I use Advance Parole, while coming back to USA what kind of questions do INS people ask. I am taking with me all my previous H1B approval/receipt notices, EAD, AP, Paystubs, Employment verification records etc..

I heard they create lot of problems for H1B visa stamping at outside US Consulate. Do they do similar kind of stuff with AP travellers?

Thanks.
 
JKBGC said:
I checked with 2 different lawyers and both are saying this is very much possible. Once I travel on AP and later if I have the valid H1B, I can any time stamp H1B.

BTW, does someone know if I use Advance Parole, while coming back to USA what kind of questions do INS people ask. I am taking with me all my previous H1B approval/receipt notices, EAD, AP, Paystubs, Employment verification records etc..

I heard they create lot of problems for H1B visa stamping at outside US Consulate. Do they do similar kind of stuff with AP travellers?

More questions depends on the entry city of entry. But I have heard stories that people are usually subject to atleast 1/2 hr wait inside the Immigration office in the airport. Please check the AP thread for more city wise information. Bottom line if you have all the necessary info you mentioned above and one extra thing is the 485 receipt then you should be cool.

Thanks.
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H1 /ap

I had H1 and had AP as well. I checked with my attorney and I was told then (about 4 months ago) that once i use AP the H1 is not valid.
BTW how long is you current H1 valid? Can you not travel on that?
Please double check with your attorney/s who are the best persons to advise.
 
mygc9904 said:
I had H1 and had AP as well. I checked with my attorney and I was told then (about 4 months ago) that once i use AP the H1 is not valid.
BTW how long is you current H1 valid? Can you not travel on that?
Please double check with your attorney/s who are the best persons to advise.
Not true. AP does not invalidate H1. EAD does.
From Murthy.com

http://www.murthy.com/UDnewins.html

INS Guidance on H-1 / L-1, EAD and Advance Parole

Prior to July of 1999, all adjustment applicants were required to obtain advance parole authorization before traveling outside the United States. A person with a pending I-485 application and without an advance parole at the time of reentry after foreign travel was deemed to have abandoned the adjustment application. That policy changed from July of 1999, as previously reported in the MurthyBulletin, to allow persons in valid H-1, L-1, H-4 or L-2 status to maintain that status even after filing for adjustment of status (I-485) and to use H or L visas (instead of advance parole) for travel.

Generally, H-1 and L-1 non-immigrants and their dependents in H-4 or L-2 status who have adjustment applications pending may be readmitted into the United States in the H or L status, provided they are in possession of a valid H-1 or L-1 nonimmigrant visa, and the original I-797 receipt notice for the application for adjustment of status, and they continue to remain eligible for the H-1 or L-1 classification. All other non-immigrants with pending applications for adjustment of status must obtain advance parole authorization prior to traveling outside the United States.

On May 16, 2000 the INS provided further clarification on how they were going to view the interim rule and provided several points.

- For purposes of approval of the I-485, those who are on the H-1 or L-1 status are required to prove their intent to work for the petitioning employer in their employment-based adjustment of status case, even though they can obtain the non-restrictive work authorization (EAD).

- If an H-1 or L-1 holder decides to file for and obtain the EAD but keeps working for the same company, he/she is still in valid H-1 or L-1 status and able to extend the H-1 or L-1 as needed (up to the maximum allowable time on that status). The mere fact of obtaining the EAD does not affect one's status; only if the person uses the EAD to take on another job, would he/she no longer be considered to be maintaining H or L status.

- If a person obtained an EAD and then went to work for another company while waiting for the completion of her/his adjustment case, that action would effectively terminate the H-1 or L-1 status of the beneficiary and she/he would have to file for advance parole to travel. The H-1 or L-1 holder would not be able to renew the H-1 or L-1 status in this situation.

- An H-1 or L-1 holder who entered the United States on advance parole can apply for an extension of H or L status, and the approval of that extension would enable the person to return to the U.S. on H-1 or L-1 status. (To maintain that status, the person cannot seek outside employment.)

- An H-1 or L-1 holder who travels out of the United States, and returns on advance parole, is authorized to continue working for the H-1 or L-1 employer. He/she would not be required to obtain an EAD to work for this same employer, within the validity dates of the H-1 or L-1 petition approval.

- If an H-1 or L-1 holder presents both advance parole documents and documents of valid H-1 or L-1 status at the port of entry to the U.S., the INS Inspector should tell the person that she/he is not required to present the advance parole, and admit the person to the U.S. on the H-1 or L-1 status.

- An H-1 or L-1 holder who has entered the U.S. with an advance parole document may depart and return as an H-1 or L-1 holder if that status has not expired.

The May 2000 INS memo implies that the new INS regulations will be consistent with the information above. The Law Office of Sheela Murthy, P.C. applauds the INS for issuing clear guidance on this important matter
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mygc9904,

I have a REF pending on H1B and my employer is saying they will reply the RFE once I come back after travel. I don't have any H1B approval notice. I only have a Receipt notice, in that case I cannot get my visa stamped on H1B basis. For me, I don't have other choice.

Titan01, Please tell me how to reach to AP thread. And tell me, do I need to carry original I-140, I-485 receipt notices or photocopy will work fine. Can they ask any H1B related questions while coming back on AP?


Thanks
 
JKBGC said:
mygc9904,

I have a REF pending on H1B and my employer is saying they will reply the RFE once I come back after travel. I don't have any H1B approval notice. I only have a Receipt notice, in that case I cannot get my visa stamped on H1B basis. For me, I don't have other choice.

Titan01, Please tell me how to reach to AP thread.
http://www.immigrationportal.com/forumdisplay.php?f=31
And tell me, do I need to carry original I-140, I-485 receipt notices or photocopy will work fine.
Photocopy are usually ok
Can they ask any H1B related questions while coming back on AP?
Practically they should not as you will be coming back in AP. But just in case check the AP forum to see if any one was in a situation like you.

Thanks
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