Advise needed on legal status

S

SaiGC2004

Registered Users (C)
1) Myself, Wife went to India when I-140 & 485 was pending after approval of AP. We both have valid stamped visa's (h1 & h4) on passport before leaving
2) I came back(alone) after few weeks and foolishly used AP at POE instead of H1 visa. I got I-94 with AOS status on it
3) After few days my I-140 was denied. At that time I was searching for options and my employer applied for H1 extension(to get I-94 on H1 again) which was approved after 2 weeks. I got new approval notice with I-94 on H1 status. During the same time I researched in forums and called for second opinions. Some people advised me to go out of country and come back with new I-94. Some people responded with comments like as long as I work for the same employer my H1 is still valid and using AP never invalidates H1.
4) now my wife is coming back to US this month and planning to enter on H4 visa. Does it holds good?? Am I on legal status??We also appealed the I-140 with Motion to Reopen which is still pending.
 
Yes, you are in lagal status. Even your wifes H4 is valid. People have different views on this, but as per my kowledge using AP does not invalidate the H1. Only when you use EAD is the H visa invalidated.
 
This is a gray area. There is no law that states when you enter US using AP, Your H1 will be invalid.

Most conservative approach to this problem is to go out of country and get back with new I94. Sometimes when you go for finger printing, they will check your i94.
 
ashwin_kc said:
This is a gray area. There is no law that states when you enter US using AP, Your H1 will be invalid.

Most conservative approach to this problem is to go out of country and get back with new I94. Sometimes when you go for finger printing, they will check your i94.
Click to expand...

Please note, the applicant received a new I-94 with the H1 approval notice.
"I got new approval notice with I-94 on H1 status"

As such the latest I-94 in H1 will rule, and there is no need to go outside and get new I-94. He already has a new I-94 in the approval notice, and this can be used just like the I-94 that is stapled on the passport at POE.
 
When you enter to USA with AP you are called Parolee. Your H-1 automatically cancels itself. At this situation you wife looses her H-4(because she is dependent on your H-1 which is already cancelled due to AP). So the only way she can come to US is with her AP. Since your I-140 was denied the underlying I-485 is denied too. So are your AP, EAD. That affects your wife. Now she can not come back with AP or with the previously lost H-4. Now you have a new H-1. She needs that to be stamped (H-4) on her passport and she can come to US with the new H-4. You can stay in US with H-1 status but next time you go out of the country you will need it stamped on your passport. This is what I understand after going through many discussions with my lawyer about legal H-1 status and using the AP. My case is different from yours. So it is better that you get an advice from a competent immigration lawyer. Since I am not a lawyer, the explaination may or may not be correct. It is only my understanding. I have tried to give you a logical explaination. Don't take my word as final. Again, check with your lawyer. My lawyer is in the opinion that whether you use AP or EAD in both cases you loose your H-1 status. It seems logical to me. Hope this help. Good luck.
PWDG
 
pwdg,
Please know your stuff before making statements like this. There have been several clarifications for a case like this. NO! You do not invalidate or lose your H status if you use AP. Remember:
For immigrant visa:
1. AP-travel
2.EAD-employment

For non-immigrants
1. H1 visa-travel
2. work permit (I797) - employment

If you use AP to enter the country, all that means is that you have AP now and you can travel with it. In no way does this invalidate your work permit!!!! In fact the INS has specifically clarified that if you now leave the country and get an H visa (yes you can!), the H visa will prevail over the AP entry. Please look for the INS memo with all these clarifications in the murthy forum.
 
SaiGC2004 said:
1) Myself, Wife went to India when I-140 & 485 was pending after approval of AP. We both have valid stamped visa's (h1 & h4) on passport before leaving
2) I came back(alone) after few weeks and foolishly used AP at POE instead of H1 visa. I got I-94 with AOS status on it
3) After few days my I-140 was denied. At that time I was searching for options and my employer applied for H1 extension(to get I-94 on H1 again) which was approved after 2 weeks. I got new approval notice with I-94 on H1 status. During the same time I researched in forums and called for second opinions. Some people advised me to go out of country and come back with new I-94. Some people responded with comments like as long as I work for the same employer my H1 is still valid and using AP never invalidates H1.
4) now my wife is coming back to US this month and planning to enter on H4 visa. Does it holds good?? Am I on legal status??We also appealed the I-140 with Motion to Reopen which is still pending.
Click to expand...
sertra2002 is right. You are legal.
 
bigbadwolf said:
pwdg,
Please know your stuff before making statements like this. There have been several clarifications for a case like this. NO! You do not invalidate or lose your H status if you use AP. Remember:
For immigrant visa:
1. AP-travel
2.EAD-employment

For non-immigrants
1. H1 visa-travel
2. work permit (I797) - employment

If you use AP to enter the country, all that means is that you have AP now and you can travel with it. In no way does this invalidate your work permit!!!! In fact the INS has specifically clarified that if you now leave the country and get an H visa (yes you can!), the H visa will prevail over the AP entry. Please look for the INS memo with all these clarifications in the murthy forum.
Click to expand...
Hello bigbadwolf,
The information I gave is not for you. So don't worry about that. Also, what ever I said, I verified with my attorney with regard to my case. I have stated that clearly. I checked the validity of this information at the US Embassy when I went to get my visa stamped. I do not know if the embassy knew what they were talking about(very likely). As always it is better to check with an attorney. I have stated that too.
 
hello pwdg

pwdg,

I suspect consultate will understand this problem and may make this mess. Bcoz my wife already has an H4visa stamped on her passport with spouse working for the same employer which is valid till next year. They may suspect/ask why you are doing it again???
 
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SaiGC2004 said:
pwdg,

I suspect consultate will understand this problem and may make this mess. Bcoz my wife already has an H1visa stamped on her passport with the same employer which is valid till next year. They may suspect/ask why you are doing it again???
Click to expand...
SaiGC2004,

You seemed to have made up your mind - nothing can help you and no one can convince you.

pwdg,

I would like you to confirm with your lawyer too. Possible that I may be missing something.

Here is what I have:

There is something called Cronin memo. Refer to:

http://www.shusterman.com/cronin51600.html

Relevant Excerpts:

In Chapter 23 of the Adjudicator's Field Manual, the questions and answers added at APPENDIX 23-4, entitled FREQUENTLYASKED QUESTIONS ABOUT TRAVEL OUTSIDE THE UNITED STATES BY AN H-1 OR L-1 NONIMMIGRANT WHO HAS APPLIED FOR ADJUSTMENT OF STATUS: by the March 14, 2000 memorandum, are removed and replaced with the questions and answers below:

.......


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.
 
Hi,
The same Cronin memo prompted me to discuss this issue in detail with my lawyer before I left US to get my visa stamped. However, I will verify with him when I meet him again and shall let you know.
PWDG
 
Thanks Jharkhandi

Jharkhandi,

Thanks for the information. I never made my mind and infact pretty confident about my wife using her existing H4. But, I dont want to take any risk and put her in trouble at POE as she is travelling with little kid. All your comments are welcome. Please advise some good lawyer who gives 100% confidence to this case.
 
pwdg ..could plz explain your case

pwdg ..could you plz explain your case. You went with new H1 approval notice and get it stamped at Consulate?
 
jharkandi, thanks for posting the link to the cronin memo. I think I did see this memo on immigration.com or some other website.
 
SaiGC2004 said:
pwdg ..could you plz explain your case. You went with new H1 approval notice and get it stamped at Consulate?
Click to expand...

Hi SaiGC2004,
I send you a PM with details of my case. Hope that will help you. Good luck.
PWDG
 
THanks

Thanks for the PM PWDG. your case is little deviated but may apply the same rules as suggested by other people here. Why your attorney told you differently? dont understand. Guys, any one with similar situation please respond.
 
SaiGC2004,

I feel yours is a very straightforward and simple case. You are on H1 and your wife is on H4 ! Now why you are bent on trying to make it complex, I have no idea ?? I can understand your anxiety and wanting to make sure your wife has a smooth passage, but sometimes if you try hard er, you can successfully convert a very simple situation into a mountain. Ever heard the saying, 'raee ka pahad banana' ??

sertra2002
 
I confirmed it with a famous Houstan Lawyer

sertra2002,

Thanks for your advise and info. You are right. I did confirmed this with another famous attorney (houstan). He said my H1 is still valid and my wife can travel on existing H4.

Thanks to all folks who gave their version of suggestion. It really helped me explore this
 
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