After using AP to enter US, how to extend H1B

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fantomX

Registered Users (C)
How to complete H1B extension application after using AP

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I will be submitting application for my H1B and wife's H4 extensions.

We last entered using our AP as we didn't have H1B visa stamped in our passport. The last H1B approval is valid until 7/2009. Currently we have AP I-94 in our passports.

We haven't used EAD and I have being working for the same employer.

I would appreciate if someone who has been in this situation or knows the answers can reply.

My questions are:

1. What should I put for the last admission into the U.S. , H1B or the using AP?
2. Then which I-94 should be entered for the current I-94 number
3. What should be entered for the current non-immigrant status? H1B or AOS?

I need to get my H1-B extended ASAP, my I-140 has gotten an RFE (I don't know what it's about yet).

Thanks.
 
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1- Your last entry to the US was as a parolee, so that is what you should write. However, being paroled is not really admission to the US. Nevertheless, since that is the manner of your last entry, that is probably the information they want.

2- An non-permanent resident alien can only have one current I-94 at a time, and it is the most recently-issued one. Your last-issued I-94 is the only one that is valid, so that is the I-94 number you should use (i.e. the parolee AP).

3- Since you entered the US as a parolee, you are not in H-1B status, so you are in AOS. It is still legal to work for your H-1B sponsor without an EAD in your situation though (as long as your current H-1B documents have been valid and you were in H-1B status before you travelled). But as for your current status, you are a parolee / AOS not H-1B. Once the extension gets approved, you will be sent a new I-94 designated as H-1B and you will be back in H-1B status.
 
jk0274

Thanks for the reply.

It is still legal to work for your H-1B sponsor without an EAD in your situation though (as long as your current H-1B documents have been valid and you were in H-1B status before you travelled).
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Here I am a little concerned. We returned on AP in 6/2008, at that time H1B was approved until 7/2008, also we got extension approved until 7/2009, we got that before we travelled in 6/2008. We returned on AP end of 6/2008. At that time we already had an extension approved 7/2008-7/2009, so we didn't apply for extension after entering on AP.

Then we travelled again in 12/2008. Does this mean at that time we were not in H1B status, even though had H1B approved from 7/2008 to 7/2009 and worked only for the H1B sponsor?
 
If you got your 7/08-7/09 extension before you traveled, and then you left the country and returned as parolees, then you were parolees (and not in H status) once you returned in 6/08. When you left and returned again in December, again you returned as parolees. But because you had a valid H-1B document for the whole period, your work was legal.

There is nothing to be concerned about. USCIS rules currently allow a former H-1B holder who entered the US as a parolee (but who still has valid H-1B documents from before travel, current or renewed) to continue working for their H-1B sponsor without an EAD. You can work as though you were in H-1B status (i.e. under all the conditions of H-1B status which means full time employee plus you can't work elsewhere etc etc) even though you are a parolee. Once you get your next extension, that will return you to H-1B status.

Many people get confused by terminology; they tell you that if you are in H-1B status, you can travel and return to the US on an Advance Parole document without affecting your H-1B status. This is not entirely true: You can travel and return without affecting your work status (i.e. you can continue to legally work as you did before as though you were in H-1B status), but your immigrant status in the US is not "H-1B" but is a "parolee". But this usually has no effect on you unless, for example, in the rare case where you have an H-4 dependent who did not apply for I-485 - in that case, since you are no longer in H-1B status, they are no longer in H-4 status and thus are not lawfully present. In your case, your spouse does have a pending I-485 and is thus lawfully present.

Lastly, your immigrant status is determined by the most currently-issued I-94 you have. Your confusion may be because, even though you obtained your H-1B renewal before you left the US, the validity dates on the new documents commenced on a date after you returned. But because your most recent I-94 (with the most recent admission stamp) is the one you got when you returned in June 08, that would probably overrule the I-94 you got with your 7/08 - 7/09 extension. But either way, you were in the US legally and were working legally, so it doesn't make a difference.

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The only thing that I may be wrong about is if the H-1B I-94 you obtained with your 7/08-7/09 extension has an "admitted" stamp that is dated in July 09 instead of the date they actually approved the extension. In that case, even though you got your "parolee" I-94 at the airport at the end of June, you also had H-1B / H-4 I-94s dated July 08. In such a scenario, it would be debatable what your actual immigration status was between July 08 and December 08 when you left the country again - but either way, I repeat, it doesn't make any difference from the standpoint of legal stay and legal work. I'm guessing that when you left the country in June 08, you surrendered your older H-1B I-94s and not the new ones that came with your extension, correct? And on your next travel in 12/08, you surrendered both your H-1B extension I-94 plus your "parolee" I-94 together? Whatever you did, again, it won't really make a difference.
 
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jk0274

I really appreciate your detailed reply.

When we left in 12/2008, we surrended only the AP I-94 from June 2008, not the H1B Extension I-94 from 7/2008 - 7/2009. We didn't have the H1B extension I-94s in the passport. The last H1B I-94s were taken in June 2008, they were valid until July 2008.

I will apply for H1 and H4 extensions, and also apply for EADs...

Thanks again.
 
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