AP/H1B status issues

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life2003

Registered Users (C)
I have a valid H1B permit, EAD & AP. I have not activated my EAD or AP and my status is H1B. I understand that a person can re-enter US on AP and still continue his status on H1B, this question was asked a number of times on murthy.com chat. What is not clear are the steps that need to be taken to get back to H1B after returning to US on AP.

Do we have to file some sort of extension to H1B as soon as i return? Did anyone do this before?

Please comment. Thanks in advance.
 
life2003 said:
I have a valid H1B permit, EAD & AP. I have not activated my EAD or AP and my status is H1B. I understand that a person can re-enter US on AP and still continue his status on H1B, this question was asked a number of times on murthy.com chat. What is not clear are the steps that need to be taken to get back to H1B after returning to US on AP.

Do we have to file some sort of extension to H1B as soon as i return? Did anyone do this before?

Please comment. Thanks in advance.
Click to expand...
Merely using AP to enter does not change your immigartion status.
Only when you use EAD, you will loose H1 status.
Once you have filed I485 you can saty in US legally till your petiton is decided.
 
I don't think so...

AP and EAD are link with A# to your AOS. Using them may kill other immigration status.
If you have and want to keep H1B alive, Better use it.
Anyway best advice is from your lawyer.
 
I am visulizing something more...

It seems in your case, you have H1B but have not it stamped on your passport.

So if you want to come back to US , you should have H1B stamped.
And for that you have to go thru that scary process of Consulate and that you want to avoid.

I am in the same boat. So far I have H1B alive and have AP & EAD (just in case). Now going for 7th year H1B extension (no stamp on passport).
 
I believe Armie is correct, upon the usage of AP does not mean you are on EAD status. You can still continue working on H1B.
 
Lakshya said:
AP and EAD are link with A# to your AOS. Using them may kill other immigration status.
If you have and want to keep H1B alive, Better use it.
Anyway best advice is from your lawyer.
Click to expand...

Not true. Using AP does not change your immigration status. Immigration status and mode/type of entry are two different things. You can use AP for entry, but still you can work on your H1 visa.
 
Lakshya said:
It seems in your case, you have H1B but have not it stamped on your passport.

So if you want to come back to US , you should have H1B stamped.
And for that you have to go thru that scary process of Consulate and that you want to avoid.

I am in the same boat. So far I have H1B alive and have AP & EAD (just in case). Now going for 7th year H1B extension (no stamp on passport).
Click to expand...
As long as he has a valid AP and H1-B notice of action and for security 485 filing receipt he can came back. At the POE show the AP and when the officer is stamping tell him that you would like to get the I-94 stamped for the duration of H1 and not for the duration of AP. If you dont ask then they will stamp it as AOS/PAROLEE.

HTH
 
hathwar said:
At the POE show the AP and when the officer is stamping tell him that you would like to get the I-94 stamped for the duration of H1 and not for the duration of AP. If you dont ask then they will stamp it as AOS/PAROLEE.
Click to expand...

Should not matter because when I-485 is pending, you are in legal status anyway. Normally when you are in non-immigrant visa, I-94 defines your legal status and duration of that status in USA. But when your I-485 is pending, it does not matter what your I-94 says.
 
continuation.....

My objective is to maintain H1 status, but to re-enter US on AP so that i don't have to get the H1B visa stamp, like Lakshya mentioned. I need H1 status to bring my wife on dependent visa H4.

Armie, NYB, Pralay - You are all right, even after using AP to re-enter we can use H1B visa to work for the employer. Please read the Q/A below, based on response from Ms. Murthy it looks like we have to file an EXTENSION to get back to H1B. When we enter US using AP we are on EAD but we still have the option to file for H1B extension. My first 3-year H1B permit expires in Nov'05, if i enter using AP in Dec'04, what will be my status from Dec'04 to Nov'05? Do i have to file an extension in Dec'04 to get back to H1B or will i be able to get back to H1B only when i file for extension in Nov'05? It really is confusing to me.

HTH, have you or anyone you know entered US the way you mentioned? Please confirm.

Q/A copied from Murthy's chat archive.

Q: Can I travel using AP and still keep H1B status upon return to the U.S.? I-140 and I-485 are still pending.
A: A person is safer to travel and reenter on the H1B to maintain H1B status. However, it is possible to travel abroad and reenter on the AP and then file an H1B extension with the USCIS under the May 2000 Legacy INS memo.

Q: Hello, Madam. If a person has advance parole and the visa expired, can he travel abroad and come back on AP without applying for a visa and still not have any affect on his H-1 status?
A: A person who chooses to travel abroad and reenter on the AP is allowed to file an H1B extension after entry to get back on H1B status. The USCIS has taken the position that such a person should work on the EAD but is also allowed to file the H1B extension under the dual intent doctrine and Legacy INS Memos from March and May 2000.

Q: Can one continue to work on H-1 after using advance parole to travel? Thanks.
A: One may not only continue to work on the H1B, but one may also file an extension of the H1B even after having entered on the AP. The problem is that there are no USCIS regulations on the dual intent issues. We only have Legacy INS Memos on this subject from March and May 2000 with the second Memo of May 2000 superseding many sections from the earlier Memo. Generally, a person is allowed to file an H1B extension as long as s/he continues to work for the H1B sponsoring employer even if s/he previously used the EAD or entered on the AP.
 
Still confusing....not clear

See the first line of first answer...
A person is safer to travel and reenter on the H1B to maintain H1B status.
In all the answers..It has been stressed that Person can file H1B after re-entry .(Interpretation - Once you use AP , kill H1B, then file again).

One Question should be like this,
If a person use AP to re-enter US even though he has valid H1B. Will his H1B be maintained? Or he has to file it again?

Discuss with your lawyer.
 
You are correct this is all confusing.

I spoke with a representative at USCIS and they said that if you entered on AP then you maintian your H1B status but should one should also keep a valid EAD......dont know why but they said that. I called since I entered on AP, at that time I had a valid EAD & AP. I have however only applied for AP renewal not for the EAD as I have applied for H1B renewal. The rep said I can apply right now for the EAD renewal and that I am still in status.

Spoke to my lawyer she said that even though I have not applied for my EAD I should be fine as long as I am working for the same employer who petitoned my H1B renewal. She mentioned there is no need for the EAD renewal if I am not planning to change employers.

Now I have decided to renew EAD too as I do not want to jeapordize the whole process. Everyone one seems to have their own interpretation for the EAD and AP issue.
 
Last edited by a moderator:
Does the same rule hold for F1 holder?
I mean can an F1 visa holder who applied for I485 but hasn't applied for the AP, go out of US and come back on F1 visa. Will there be problems?Anything to watch out for?
 
Lakshya said:
See the first line of first answer...
A person is safer to travel and reenter on the H1B to maintain H1B status.
In all the answers..It has been stressed that Person can file H1B after re-entry .(Interpretation - Once you use AP , kill H1B, then file again).

One Question should be like this,
If a person use AP to re-enter US even though he has valid H1B. Will his H1B be maintained? Or he has to file it again?

Discuss with your lawyer.
Click to expand...
No -- there is nothing confusing here. Read the Cronin Memo.
A person entering on AP does NOT lose H1 status just due to that fact.

You live your life as a H1 holder ..... even if you use AP to enter.

If you have a valid H1 visa stamp (not just H1 status), then you do NOT need AP and even if you show your AP, the POE officer should let you know that AP is not needed.

Using AP does not kill anything :)
 
life2003 said:
Armie, NYB, Pralay - You are all right, even after using AP to re-enter we can use H1B visa to work for the employer. Please read the Q/A below, based on response from Ms. Murthy it looks like we have to file an EXTENSION to get back to H1B. When we enter US using AP we are on EAD but we still have the option to file for H1B extension. My first 3-year H1B permit expires in Nov'05, if i enter using AP in Dec'04, what will be my status from Dec'04 to Nov'05? Do i have to file an extension in Dec'04 to get back to H1B or will i be able to get back to H1B only when i file for extension in Nov'05? It really is confusing to me.

HTH, have you or anyone you know entered US the way you mentioned? Please confirm.

Q: Can one continue to work on H-1 after using advance parole to travel? Thanks.
A: One may not only continue to work on the H1B, but one may also file an extension of the H1B even after having entered on the AP. The problem is that there are no USCIS regulations on the dual intent issues. We only have Legacy INS Memos on this subject from March and May 2000 with the second Memo of May 2000 superseding many sections from the earlier Memo. Generally, a person is allowed to file an H1B extension as long as s/he continues to work for the H1B sponsoring employer even if s/he previously used the EAD or entered on the AP.
Click to expand...

I just highlighted the the last Q&A pasted by you (from murthy.com). Isn't clear enough to confirm that you are still in H1 status after entering?
Murthy.com added the topic of "extention" as just an additional note. It's not mandatory.
 
NYB said:
Now I have decided to renew EAD too as I do not want to jeapordize the whole process. Everyone one seems to have their own interpretation for the EAD and AP issue.
Click to expand...

It's always good idea to keep EAD renewed and handy. Can be very useful if soemthing wrong happens - like lay off. But it's not mandatory.
 
Can one start new H1b after AOS

I was on O-1 before I applied to I-485. After I applied to I-485, I applied for new H1B and got it. Then changed job on EAD and desrted H1B. Do you think, Can I start back H1B???
 
Question for max2k1

max2k1,

I am completing my 6th year of H1B and will apply for 7th year extension. Simultaneously I will apply for AP. Naturally my 7th yr H1B will not be stamped on my passport.

Now if I want to go out of country and also don't want to get H1B stamped in my home country.(Just have approved H1B). I will use my AP for re-entry.

What will be the procedure?
- I will give my all I-94 (this is linked with non-immigration H1B Visa)
- While coming back, will show copies of AP.
- And back here I can continue working on H1B.
Is it correct max2k1 ?

I have presented this scenario. Also I have never used AP so I might be missing something. Please correct me if I am wrong.
 
red020 said:
I was on O-1 before I applied to I-485. After I applied to I-485, I applied for new H1B and got it. Then changed job on EAD and desrted H1B. Do you think, Can I start back H1B???
Click to expand...

Yes, you can start provided you get a new H1 from your new employer. And for this year H1 quota is finished (as you not in H1 anymore your won't able to "transfer" your H1).
 
Help me too

Lakshya said:
max2k1,

I am completing my 6th year of H1B and will apply for 7th year extension. Simultaneously I will apply for AP. Naturally my 7th yr H1B will not be stamped on my passport.

Now if I want to go out of country and also don't want to get H1B stamped in my home country.(Just have approved H1B). I will use my AP for re-entry.

What will be the procedure?
- I will give my all I-94 (this is linked with non-immigration H1B Visa)
- While coming back, will show copies of AP.
- And back here I can continue working on H1B.
Is it correct max2k1 ?

I have presented this scenario. Also I have never used AP so I might be missing something. Please correct me if I am wrong.
Click to expand...



Thats kind of my trouble too. I am travelling to india in december and have to get the passport stamped with H1b. Applying for AP now , but very slim chance of getting it ( I am told ) before that travel date.
I have a mistake on my notice of action ( approved beyond valid 6 years). My attorney refiled but new approval may not come in time. So I have to try the old Notice of action and show the new filing if the counsuler asks :eek:

My Question is if my AP comes in time but I Just travel out of US with my I94 , And there are delays/Issues in Counsulate in india to stamp my visa , Can I come back on AP ?? Is it necessary to document AP on departure.
Also Can I use the AP that comes while I am out of country ??
 
pralay...

>I just highlighted the the last Q&A pasted by you (from murthy.com). Isn't >clear enough to confirm that you are still in H1 status after entering?
>Murthy.com added the topic of "extention" as just an additional note. It's not >mandatory.

Thanks for your comments. If you read my original post carefully, i said what is unclear are the steps we need to take to get back to H1B, if any.

Based on what i read in other posts and my understanding of the issue this is the summary - Reentering US using AP does not invalidate your H1B status, we don't have to file any sort of extension or inform USCIS. The "extension" used in the legacy memo is in the context of extending your H1B visa beyond 3 years or 1 year extensions after 6 years. I think what it is saying is that we are considered to be in H1B even after re-entering on AP and hence are eligible for extension. This is just my opinion!!
 
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