AP vs H1B

[SuhasSutar]

My 140 and 485 applications are pending and i have EAD and AP for me and my wife. I have not started using EAD but my wife has. We recently travelled to india and came back on AP. I realised later that it was not necessary to use AP for me as my H1B is still valid.

Our I-94 has AOS(Adjustment of status) written on it instead of H1B and H4 which i didn't check when they issued it to me. Infact i had told the immigration officer that i want to use H1B. But he said that using AP does not change my status so i used AP.

I spoke to my lawyer and he said that i am not on H1B status anymore and i should start using EAD with my employer which i don't want to do. I heard that if i resume work for the same employer then my H1B is still valid and i can be on H1B status. But what should i do with I-94 which says otherwise.

I would greatly appreciate any help/suggestions.

Thanks in advance.

Suhas

 

[memsg]

My 140 and 485 applications are pending and i have EAD and AP for me and my wife. I have not started using EAD but my wife has. We recently travelled to india and came back on AP. I realised later that it was not necessary to use AP for me as my H1B is still valid.

Our I-94 has AOS(Adjustment of status) written on it instead of H1B and H4 which i didn't check when they issued it to me. Infact i had told the immigration officer that i want to use H1B. But he said that using AP does not change my status so i used AP.

I spoke to my lawyer and he said that i am not on H1B status anymore and i should start using EAD with my employer which i don't want to do. I heard that if i resume work for the same employer then my H1B is still valid and i can be on H1B status. But what should i do with I-94 which says otherwise.

I would greatly appreciate any help/suggestions.

Thanks in advance.

Suhas

Check the answer to question #4 at the following website.

http://www.usvisanews.com/questions/wedquest120804.shtml

Also check the Zhang and Associates website

http://www.hooyou.com/advanceparole/faq.html

I've cut-pasted the following excerpt.
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Q: I am an H-1B holder, and my I-485 is pending. I wish to travel abroad, but I am not sure whether I can get H-1B visa to reenter the U.S. Do I need to apply for an Advance Parole?
A: To safeguard that you can go back to the U.S., you may apply for an Advance Parole before you start your travel abroad. You may bring your Advance Parole with you, but you should try to apply for your H-1B visa first. If you get your H-1B visa, you may use your H-1B visa to reenter the U.S. If your H-1B visa application is denied, you may use your Advance Parole to reenter the U.S. Thus, like a back-up, your Advance Parole may let you return the U.S. in case that you cannot get a visa.
**************************
You appear to be OK, but USCIS does seem to be inconclusive about this. My HR told me that it is possible to enter with an AP in lieu of an H1B VISA Stamp in the passport. You still need the H1B approval notice which establishes the validity of your stay.

Good luck. Let us know what happens.

 

[SuhasSutar]

I already have H1 stamped on my passport which is valid still March 2006. So i could have shown the H1 for reentry. But my lawyer had told me that if i use EAD then i need to use AP which is the case with my wife. So i told them that i have AP for my wife and they asked if i have for me to. So i showed them both the APs and they stamped my passport and I-94 with that information.

My lawyer is suggesting that i can go out of the country and come back in on my H1 OR i can visit local USCIS office and request them to issue new I-94 with H1B status.

I am opting for the second route.

If i am denied of the new I-94, the only question is if i have to use EAD or not. I do not want to use EAD because if my I-140 gets rejected, i will be out of status and will have to apply for H1 again.

Let me know if this understanding is correct.

Thanks for your reply.

Suhas