AP and H1-B (I know this has been asked, but..)

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nkumar7

Registered Users (C)
Hi,

As you can see from my timeline, I have my AP, and interview in January for GC. I am also currently on H1-B and am traveling in 3 days, and will be returning in mid-January. I will be returning to the same job.

My question, which has been asked before is: What should I use for re-entry? I have done my research and I know I can use either, but here is my scenario:

If I stand in line with my USC spouse, intending to use my H1-B, then I will surely be asked why are you in this line, since you are not a PR/citizen. Then I will have to bring up my pending I-485 etc and show my AP.

Will they then give me an option of which I want to use? I would rather not use the AP, since it will most likely mean secondary inspection, something we would not want after a 17 hour flight.

Or would it just be best to stand in the non USC/PR line and use my H1-B (I might just do this if the lines are equally long).

Your input is appreciated!

Thanks.
 
Fingerprinting/photographing machine may not be on at USC/LPR line if you come back before Jan 18.
 
GotPR? said:
Fingerprinting/photographing machine may not be on at USC/LPR line if you come back before Jan 18.
Click to expand...

Thanks for the info, how do you know this (just curious)?

That still doesn't help me though, has anyone been in the same situation as me? I'm sure someone here has...c'mon people!

If I don't hear back before January 13th (when I return), then I will just stand in the visitors line and use my H1-B (which has been stamped in my passport for over a year now and is valid till May 09).
 
nkumar7 said:
Thanks for the info, how do you know this (just curious)?
Click to expand...
I know the equipments are in all the booth, but not sure they are turned on all the time in USC/PR line. If not, they may turn the machine on, but I'm sure it takes some time for the machine to sync up with server and they may transfer you to non-immigrant line, instead.. I don't know. It's probably up to the officer at POE.

Federal Register, Dec 19.
http://edocket.access.gpo.gov/2008/E8-30095.htm

SUMMARY: The Department of Homeland Security (DHS) established the
United States Visitor and Immigrant Status Indicator Technology Program
(US-VISIT) in 2003 to verify the identities and travel documents of
aliens. Aliens subject to US-VISIT may be required to provide
fingerscans, photographs, or other biometric identifiers upon arrival
at the United States. Currently, aliens arriving at a United States
port of entry with a nonimmigrant visa, or those traveling without a
visa as part of the Visa Waiver Program, are subject to US-VISIT
requirements with certain limited exceptions. This final rule expands
the population of aliens who will be subject to US-VISIT requirements
to nearly all aliens, including lawful permanent residents. Exceptions
include Canadian citizens seeking short-term admission for business or
pleasure under B visas and individuals traveling on A and G visas,
among others.
On August 31, 2004, the Department promulgated an interim final
rule that expanded the US-VISIT program to include aliens seeking
admission under the Visa Waiver Program and travelers arriving at
designated land border ports of entry. This rule also finalizes that
interim final rule and addresses public comments received during that
rulemaking action.

DATES: This final rule is effective January 18, 2009.
 
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Same thing happened to me back in Sep06.
I was on H1B and did not have AP.
We went to the Caribbean for Labor's Day weekend, my I-485 was pending and my interview was gonna be at the end of October.
I went to the USC/LPR line with my wife and cleared without any problem.
Do not use AP, as it would void your H1B status.
 
I agree with Sarrebal on losing the H1B status, but my husband and I have done differently so far.
I'm on L1B (work visa just like H1-B) and when i travel with my husband he goes to the USC line, I go to the other one and clear through my L1B visa. If you use the AP, you'll lose your H1-B status, and I wouldn't do that.
 
I wasn't aware of the "cronin Memorandum", good thing to know.

Link to the "memo": http://www.shusterman.com/cronin51600.html

Extract:

5. Should an alien returning to the United States from travel abroad who has a valid 1-512 and a valid H-1 or L-1 nonimmigrant visa be paroled in or readmitted in H-1 or L-1 status?


If an alien has a valid H-1 or L-1 nonimmigrant visa and is eligible for H-1 or L-1 nonimmigrant status and also has a valid Form I-512, he or she may be readmitted into H-1 or L-1 status or be paroled into the United States. It is the alien's prerogative to present either document at inspection. However, if an alien presents both a valid H-1 or L-1 nonimmigrant visa and a valid Form I-512, and the alien is eligible for the H-1 or L-1 nonimmigrant classification, the Service should inform the alien that H-1 and L-1 nonimmigrants no longer need to use advance parole to preserve pending applications for adjustment of status and should admit the alien in H-1 or L-1 nonimmigrant status. The fact that an alien has applied for advance parole and received Form I-512 does not compel him or her to use the advance parole.


If the alien is not admissible as an H-1 or L-1 nonimmigrant, then he or she cannot be readmitted as an H-1 or L-1 nonimmigrant. Instead, such an alien may be paroled into the United States.
 
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I found another source of explanation:

"According to the memo, the H1 status is not lost by using AP if one continues to work for the H1 sponsoring employer, and there is no need to use the EAD to work. When the alien reenters the US, he/she enters in parolee status, but continues to use the H1 work authorization to work. The next H1 extension reverts the alien back to official non-immigrant status and ends the parolee status.

Thus, it is almost as if the alien is a parolee but the H1 status is maintained in the background. The question is what happens if the I485 is denied when the alien is a parolee ? Can the alien work in legal status using the H1 which has not been affected due to the I485 denial ? Note that the parole and EAD become invalid soon after I485 denial. If the alien is in legal status despite the denial, then the alien is able to file MTR and maybe even another I485 while in legal status..."


I would still keep my AP in the pocket and show the H1B visa only...
 
Thanks for the replies, I am familiar with the cronin memorandum, and the section quoted by rosie. Just not so sure that the IO would know it! I will keep a print out with me and use my H1-B to re-enter, whether it be via the USC/LPR line or the visitors line. And if the AP is needed then I will have that on me too.

Thanks!
 
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