AP or H1-B stamping?

[anujsingla]

Myself and my wife are both on H1-B. We never went to India after we got H1-B, so we don't have H1-B stamped in our passports.
My company filed I-140, I-485, AP and EAD on my behalf in October 2003 after approval of labor (EB2, RIR). Applications for my wife were filed as derivative. AP and EAD were approved for both of us in the first week of December 2003. We are planning to go to India in March 2004 for a month. I understand that we can use AP to re-enter US.
My question is that whether we can get our H1-Bs stamped while we are visiting India. We do not want to loose our H1-B status until everything is approved. Should we let the consulate officer know about our immigration process. Please advise.

 

[ginnu]

My question is that whether we can get our H1-Bs stamped while we are visiting India.
------YES
We do not want to loose our H1-B status until everything is approved. Should we let the consulate officer know about our immigration process?

----- On form DS-156 you have to write YES for the question “ if any immigration petition has been filed for you” and your employer filed I-140 for you and you will write YES and employer name your wife will write NO as no I-140 was filed for her. H, L, O visa have dual intent you can get H1b visa stamps. One can be on AOS pending and on H1 status at same time

 

[140_takes_4ever]

You do not need to go for an H1 visa stamp or enter on a H1 visa in order to maintain H1 status.

If you have an AP, you can use it to enter the country and keep working for your current employer on your H1.

 

[love2002]

Are you sure?
I am in the same situation and I have to clear it.
here are my 2 questions.

1.My wife was on h4 visa till last year and has only h4 stamping. she got a approved h1 and working now for past 3 months. we applied 485/EAD/AP for her in october 2003. she has to travel to India in january.

Does she has to get her h1 stamped in india before she reenter the country. is this is a must?
or
if she uses AP to enter the country back without having the h1 stamping on the passport, I am worried she loses her H1 status. is that right?
Which is the best option and which is advisible?

2.If she hasn't get her AP approved before she travel to India,what can she do?
Can we go to any local INS office to get the AP with the 485 receipt?
I read somewhere its better not to travel outside the country when AP is pending and it may create problems when returning?
Any suggestions?

Thanks you so much for everyone's time in answering these questions.
you guys are really great and thanks a lot!

 

[140_takes_4ever]

1a. If she has a valid AP then she doesn't need to get her H1 stamp, the H1 stamp is just a travel document, your legal status is derived from your H1 approval receipt.

1b. As long as she is not travelling through a country that needs a transit visa if AP is used, then AP is definitely the better alternative. But in her case, since she doesn't have a valid H1 in any case, she might need a transit visa in both cases.

If she plans to travel on H1, then she will have to take an appointment at the US consulate in your country of destination. Go for an Interview and then get her H1 stamped. On entering the country she needs to show her 485 original receipt, since she would like to continue with AOS as compared to abandoning it.

2. It doesn't matter if her AP is not approved before travel to India, in which case she will have to follow the instructions above for travel on H1. The only time it is a problem to travel when AP is pending, is if AP is your only travel document and you want to enter the country on the approved AP, in which case you MUST be in the country at the time of AP approval.

As far as the legality of the above statements is concerned. I have no legal background. Just a lot of experience with my case and others on this forum. Before taking ANY advice you receive on this forum, including mine, I would definitely advice you to consult your attorney. Use this forum as a sounding board to get different options clear, and then consult your attorney as to the best available option. Don't trust the words that come out of an annonymous forum!

Hope the above helps! Good luck and have a safe trip.

 

[watever]

i have a similar question.. I have my extended H4 but the visa stamp expired in July.. my extension is till 2005, and my AP has takes 6 months and its still on pending.. can i travel ..get H4 stamped and come back or should I wait hopelessly for the hopeless AP???

 

[140_takes_4ever]

As long as you have not used your EAD to work, you can use H1/4 to enter the country.

Remember to show your 485 receipt to the immigration officer at POE, you don't want him to mark your AOS case as abandoned since you are entering on a different visa status.

Also H4 visa stamp might not be as simple as it used to be. You will have to go for an interview, take an appointment, etc.

 

[nnarayanus]

Remember to show your 485 receipt to the immigration officer at POE, you don't want him to mark your AOS case as abandoned since you are entering on a different visa status.

---Is this is true ? Why do they put AOS as abandoned if you enter in H or L status. These visas have dual intent.

 

[dingdingdo]

anujsingla,

Could you please tell me a little bit more about your AP and EAD, I cocurrently files I-140, 485-, 765 and 131 in Sept 2003, no any approval on EAD and AP, mine is in California. how about yours?

Thanks.

 

[love2002]

Thank you so much 140_takes_4ever for taking time in answering my question.

I have to wait and c if she is getting AP before we travel to India.
its going to be 3 months since we applied for her.

Due to so much of problems in new h1 visa stamping in India these days,I like to bring her on AP.
if 90 days has passed since I applied AP, then I can go to local INS office and get AP. right?

I suggest nowadays AP is better than getting a new h1 stamping in the passport from India.
Just using AP for travel, doesnt change or loose our h4 or h1 status.right?
any suggestions?

 

[140_takes_4ever]

There is no iAP, unlike iEAD. so the 90 day rule does not hold good here.

What you have is eAP (emergency AP), for which you need to prove or convince the INS officer that you have an emergency back home and need to travel. It is much much tougher to get than an iEAD these days.

So I guess you are stuck waiting for AP approval.

It is good you plan to travel on AP, I always prefer it over H1. And if you read my above statement, it does not invalidate your H1 status at work.

Good luck!