AP and H1/I-94 validity

[Inrisk]

Sorry for posting it twice, I posted as a new thread for more visibility,

I have a valid EAD/AP based on my pending I-485. But I'm still working on my H1 (H1 expired, applied for H1 re-validation/transfer and its still pending in INS). I invoked AC-21 to switch jobs but retained working in H1, based on my H1 transfer. I dont work for the company whose visa is stamped in my passport. But my new company has already applied for my H1. I have the notice number and stuff. I also informed INS about my job transfer (AC-21).

Now, since my H1 revalidation is still in process, can I use a valid AP to get in/out of US?? My I-94 expired (with my Visa), so what will happen when I enter in using my AP? Will they ask about my expired I-94 and H1?? I dont want to work in my EAD though.

Thanks a bunch

 

[TheRealCanadian]

But I'm still working on my H1 (H1 expired, applied for H1 re-validation/transfer and its still pending in INS). I invoked AC-21 to switch jobs but retained working in H1, based on my H1 transfer.

I would be extremely skeptical of this. I have yet to read anything about H-1 portability benefits that would allow them to continue beyond the expiration of the original H-1 petition. I know for a fact that the original Yates memorandum specifically instructs CBP NOT to admit an alien requesting entry in such a situation/

Now, since my H1 revalidation is still in process, can I use a valid AP to get in/out of US??

Right now, that is the only way you will gain re-entry to the US.

so what will happen when I enter in using my AP? Will they ask about my expired I-94 and H1??

So long as the I-485 was filed before the original I-94 expired, there is no problem whatsoever.

I dont want to work in my EAD though.

Too bad - I am 99% sure you are doing so already. If you want to go back to H-1 status, you'll need to re-enter the US with your H.

 

[Inrisk]

I would be extremely skeptical of this. I have yet to read anything about H-1 portability benefits that would allow them to continue beyond the expiration of the original H-1 petition. I know for a fact that the original Yates memorandum specifically instructs CBP NOT to admit an alien requesting entry in such a situation

What if I have an approved 797 ?? Technically I'll get a new I-94 (with new validity dates), but my stamping in passport will be expired though? right?

Right now, that is the only way you will gain re-entry to the US.

So even though my H1 is expired, AP allows me to enter USA?

So long as the I-485 was filed before the original I-94 expired, there is no problem whatsoever.

Yes, my 485 was applied waaay back.

Too bad - I am 99% sure you are doing so already. If you want to go back to H-1 status, you'll need to re-enter the US with your H.

I dont know why you meant too bad. I'm NOT working in EAD now. I'm technically still in my H1, coz my company filed for a H1 revalidation/transfer before it expired.

Sorry, I didnt get your answer though, can I still go/come using my AP while my H1 expired/in process?? And do I need to have my original 485 notice?? I have my original AP's though. What if I dont have original 485 notice?? can I use FOIA to get one??

Thanks again!

 

[TheRealCanadian]

What if I have an approved 797 ?? Technically I'll get a new I-94 (with new validity dates), but my stamping in passport will be expired though? right?

OK, if you have an approved H-1 petition but no stamp, then you'll enter using you AP. There is a memo (I believe the Cronin memo) that allows you to work using your H-1 even after entering using AP.

I'm technically still in my H1, coz my company filed for a H1 revalidation/transfer before it expired.

You're mixing terms and confusing me. H1 revlidation is when you sent your passport to St. Louis to get a new visa stamp without leaving the US. That no longer exists. An H-1 transfer is when you switch employers and you start work for the new employer based on the receipt of the new employer's H-1 petition for you. Let's take a second to be clear on your situation so that I can give you a reasonable informed suggestion.

Scenario #1: You have an expired H-1 petition for employer A, who has filed for an extension before it expired. You have continued to work for A after the expiration, based on the timely filed extension.

Scenario #2: You have an expired H-1 petition for employer A. Before it expired, employer B filed an H-1 petition on your behalf, and based on its receipt you started working for employer B.

If Scenario #1 is accurate, then you are fine and remain in H-1 status. If Scenario #2 is the case, then you are certainly using your EAD.

And do I need to have my original 485 notice?? I have my original AP's though.

You don't need the I-485 notice; the POE should already know you have an I-485 filed. Even if you don't have the original reciept, a copy would be helpful in case they have difficulty looking up your number. Just make sure you have the original AP documents.

 

[max2k1]

Both mine and my friends lawyers insist that you need the ORIGINAL 485 receipt notice if you are traveling and re-entering on a visa (H/L etc).

You need a copy if you are entering on AP.

 

[TheRealCanadian]

Both mine and my friends lawyers insist that you need the ORIGINAL 485 receipt notice if you are traveling and re-entering on a visa (H/L etc). You need a copy if you are entering on AP.

And why, pray tell, is this?

One of two things is going to happen when you enter on an H/L after the I-485 is filed. Either the POE is going to find your pending adjustment in the CLAIMS system, or they won't.

If they don't find the adjustment, then this is the same as a regular H/L admission. They verify the petition in CLAIMS, stamp your I-94 and maybe your passport, and off you go. If they do find the adjustment, then they already have far more information than the receipt could tell them.

Any why all the hocus-pocus about original 485 receipts versus copies? There's nothing stating such a requirement in any statute, regulation or memorandum that I've read or heard of.

 

[max2k1]

I was just communicating what I was told by my attorneys.

Its upto each one of us to decide what to do with it.
I mean getting the original 485 receipt notice is no big deal for me -- I just call the attorney and its sent by Fedex the next day

I don't understand the deal behind asking for the original -- but after all this, I've stopped trying to see any sense in how INS may or may not operate

 

[Inrisk]

OK, if you have an approved H-1 petition but no stamp, then you'll enter using you AP. There is a memo (I believe the Cronin memo) that allows you to work using your H-1 even after entering using AP.

Thanks, that explains.

You're mixing terms and confusing me. H1 revlidation is when you sent your passport to St. Louis to get a new visa stamp without leaving the US. That no longer exists. An H-1 transfer is when you switch employers and you start work for the new employer based on the receipt of the new employer's H-1 petition for you. Let's take a second to be clear on your situation so that I can give you a reasonable informed suggestion.

Sorry for that confusing post. Your scenario 2 is right.

Scenario #1: You have an expired H-1 petition for employer A, who has filed for an extension before it expired. You have continued to work for A after the expiration, based on the timely filed extension.

This is not my case. Say I was working for Emp A, who filed my H1 and 485, before expiration they filed for my H1, but then before the day of expiration I switched my Company to Emp B, who filed a transfer petition for me.

Scenario #2: You have an expired H-1 petition for employer A. Before it expired, employer B filed an H-1 petition on your behalf, and based on its receipt you started working for employer B.

I think that closely matched my state.

If Scenario #1 is accurate, then you are fine and remain in H-1 status. If Scenario #2 is the case, then you are certainly using your EAD.

How come?? I'm not able to understand it.
I was in H1, applied for H1 transfer before my expiration and started working for Employer B. How does this process makes me work in my EAD??

You don't need the I-485 notice; the POE should already know you have an I-485 filed. Even if you don't have the original reciept, a copy would be helpful in case they have difficulty looking up your number. Just make sure you have the original AP docuents.

Sure, thanks.

Thanks a lot so for your help, Real Canadian and Max2K1.

Also, Real Canadian, I just need clarification for Senario 2. I still havent received my H1 transfer approval, so may be if I go for premium processing I shud get a defn answer.

 

[TheRealCanadian]

Say I was working for Emp A, who filed my H1 and 485, before expiration they filed for my H1, but then before the day of expiration I switched my Company to Emp B, who filed a transfer petition for me. I was in H1, applied for H1 transfer before my expiration and started working for Employer B. How does this process makes me work in my EAD??

The problem you have is that your original H-1 petition has expired.

The first AC21 memorandum addressed this issue in an oblique way. Bill Yates said that a POE could admit an alien using portability benefits before the 2nd H-1 petition was approved, provided the following conditions were satisfied: the petition could be found in CLAIMS, and the original H-1 petition had not expired.

One of the regulations provides that H-1, L-1, O-1, TN and R-1 work authorization is automatically extended for up to 240 days when an extension petition is pending with USCIS. However, you don't have an extension petition; you have a totally new one. Your status wasn't automatically extended after the original petition expired - your portability benefits ceased when the original H-1 petition expired.

I'll add the obligatory caveat that nothing has directly addresed the concept of portability after the expiration of the original H-1. However, based on the first AC21 Yates memo, I would suggest that if you in your situation (assuming you didn't have AP) are inadmissible, I wouldn't hold my breath that you are in vaid H-1 status.

 

[Inrisk]

One of the regulations provides that H-1, L-1, O-1, TN and R-1 work authorization is automatically extended for up to 240 days when an extension petition is pending with USCIS. However, you don't have an extension petition; you have a totally new one. Your status wasn't automatically extended after the original petition expired - your portability benefits ceased when the original H-1 petition expired.

So the transfer petition is considered a total new petition??

Say if I have an approved 797 (based on the transfer peition filed), will I have any problems if I go in for H1 stamping in my home country or say in Canada?

I'll add the obligatory caveat that nothing has directly addresed the concept of portability after the expiration of the original H-1. However, based on the first AC21 Yates memo, I would suggest that if you in your situation (assuming you didn't have AP) are inadmissible, I wouldn't hold my breath that you are in vaid H-1 status.

Will ask my lawer about it, and may be i'll go for premium processing, so I'll get a definite result for my H1 transfer petition. I already sent a letter to INS saying that I'm switching my company based on AC-21.

So far I'm working in my H1 assuming my transfer is legal, if not then I need to ask them to use my EAD

I think i'm deep in $hit.

 

[TheRealCanadian]

So the transfer petition is considered a total new petition??

Well, it's certainly not the extension of an existing petition, so I'd be inclined to say yes.

Say if I have an approved 797 (based on the transfer peition filed), will I have any problems if I go in for H1 stamping in my home country or say in Canada?

You shouldn't, since you've done absolutely nothing wrong. Between the old H1 petition and your EAD, you've never worked illegally. Who knows - maybe the I-797 will have an I-94 on it that means that USCIS has considered you in H-1 status the entire time.

All I'm trying to say is that you should not assume that you are in H-1 status. You are not, and unless USCIS provides an I-94 at the bottom of your H-1 transfer approval notice that covers this time, you were simply using your EAD. That's not exactly the end of the world.

may be i'll go for premium processing, so I'll get a definite result for my H1 transfer petition.

That would be a waste of $1000.

So far I'm working in my H1 assuming my transfer is legal, if not then I need to ask them to use my EAD. I think i'm deep in $hit.

Absolutely not. You are entirely legal, so long as your EAD doesn't expire. The absolutely worst possible thing that could happen is that your employer might undergo an I-9 audit and discover that you were not in valid H-1 status and using an EAD, but the odds of this are extremely low. Just update your I-9 with HR as soon as you can and all will be good.

You started this discussion assuming that all was fine with your H-1, which was incorrect. But things aren't anywhere close to being as bad as you think. Just update your I-9 with HR and wait until your transfer petition gets approved.

 

[Inrisk]

You shouldn't, since you've done absolutely nothing wrong. Between the old H1 petition and your EAD, you've never worked illegally. Who knows - maybe the I-797 will have an I-94 on it that means that USCIS has considered you in H-1 status the entire time.

Yep, I'll wait for a month or so. Hopefully I'll get an answer for my petition then.

That would be a waste of $1000.

Well, I'll force my company to do it its all bcoz of them

You started this discussion assuming that all was fine with your H-1, which was incorrect. But things aren't anywhere close to being as bad as you think. Just update your I-9 with HR and wait until your transfer petition gets approved.

Yep, thats what I'm gonna do.

So I think, I can still use my AP to get in/out of the country and need to set this H1 thing right.

Thanks a lot man, you really saved some heart burn for me