Can I apply for H1B after AP?

W

wy2001

Registered Users (C)
I submitted my I-485(EB) last February (RD). I am considering changing job and also need to bring my spouse here, who will finish the 2yr HRR by the end of June. Originally I planned to use I-824 for the follow-to-join, but now it takes more than a yr to complete.

Can I use H4 to get her here?

1. I started working using my 1st H1B (expires Feb 2004). However I used my AP last yr. Is my H1B still valid?

2. It seems not certain that I can get my green card by the end of June. I am looking into starting work for the new employer in July. Can I ask them to get me a new H1B?

3. How much risk does it take to use H1B? I am planning a trip and come back to US by the end of June. Should I use the present H1B or H1B from the new employer? For the H1B, what should be the start time then? Do I have to have it before I leave?

4. Any way to use B-2 and file I-485?

5. How can I still wait for my GC in VSC but my new employer is in TSC? Will the filing of H1B move my case there? If not, do I need to maintain my present address in VSC after I move?


A lot of head scratches but no answer. Please help!!!

wy
 
Using AP nullify H1B ???

Thats the question I also have. I got both answers, yea and no.
I saw the INS release to support they answer "yes", however I did not see any INS release to support the answer "no".


My lawer says "yes". On the other hand Ms. Murthy says "No, if you keep working for the same employer"

My friend used AP and his wife got denied for H4.


SO now... what??
 
Originally posted by wy2001
I submitted my I-485(EB) last February (RD). I am considering changing job and also need to bring my spouse here, who will finish the 2yr HRR by the end of June. Originally I planned to use I-824 for the follow-to-join, but now it takes more than a yr to complete.

Can I use H4 to get her here?

1. I started working using my 1st H1B (expires Feb 2004). However I used my AP last yr. Is my H1B still valid?

--> No. Your H1 ceases to be valid as soon as you use EAD or AP. However, Sahin correctly references Murthy's comment that ur H1 is valid till you keep working for same employer - this is because just applying/getting EAD/AP does not means u have used it.. U have to use it in changing jobs (like u did) or not renewing expired H1 to be on EAD/AP

2. It seems not certain that I can get my green card by the end of June. I am looking into starting work for the new employer in July. Can I ask them to get me a new H1B?

--> Not 100% sure but this can mean abandonement of AOS.. U should go AC-21 route instead ideally.. This would solve ur job change problem.

3. How much risk does it take to use H1B? I am planning a trip and come back to US by the end of June. Should I use the present H1B or H1B from the new employer? For the H1B, what should be the start time then? Do I have to have it before I leave?

--> U cannot use the present H1 as the present H1 is no longer valid.. Ideally, u should file AC-21 and come back using AP just like u did earlier..

4. Any way to use B-2 and file I-485?

5. How can I still wait for my GC in VSC but my new employer is in TSC? Will the filing of H1B move my case there? If not, do I need to maintain my present address in VSC after I move?

--> If you use AC-21, u dont have to change center as the new employer can be in a different location..

A lot of head scratches but no answer. Please help!!!

--> I can understand ur anxiety, specially with spouse visa etc, but would suggest u stay put with ur current AOS application.. U are close to the end of a long journey man.. If I were u, I would do anything rather than take chances on it..

--> goodluck! --ab

wy
Click to expand...
 
Hi,

Talk to your lawer. Don't go by what Sahin is saying. He is here to scre...up your happiness.

Good Luck !
 
Re: Using AP nullify H1B ???

Originally posted by Sahin


My friend used AP and his wife got denied for H4.


SO now... what??
Click to expand...

That was bound to happen. If you are the primary, and you use AP then your status changes from a H1B to adjustee with EAD (if you want to work)

Since H4 is dependent on H1 the moment you become a strict adjustee... your spouse cannot avail of any dependent benefits - here H4.

Why does this surprise you? Spouse now has to use AP to get back... no choice.
 
What is AC-21? Can any of you give me more hints?

I tried to look into the archieves here and found that my H1B with the present employer is still OK to use.

My concern now is if I can get a new H1B and use it for my purpose of getting the H4?

Very fundamental question about H visa: Can my wife get H4 directly from a consulate? What do I have to do with H1B to make it possible? Stamped? What else?

Thanks,

wy
 
Well there are many opinions that are floating around. I still reserve my judgement on sahin the human being. But here goes- the response to your original Qs

1. Your H1 is valid !!!
2. Yes. But... if U are changing employer (similar job) then you are exercising AC21 (see isn.org and find the ac21.pdf and read it before popping Qs)
3. It is always better to have the start date of new H1 before U leave(premium processing?). It is the best even to have the stamp in the passport a second before your spouse gets the h4 stamp in passport... No risk in using H1. you can use either the old company H1 or the new h1. but be beware, the old h1 company might revoke the h1 and consulate can always find that out if they want to (unlikely, but possible)
4. DOnt use B2. it is shortsighted. B2s are not supposed to be immigrants. it violates the basic tenets of intent to immigrate...

5. It is upto you to decide whether to maintain VSC. You legally can maintain an address in VSC. VSC is faster than TSC (add 2+ yrs to processing time) But if U get a local interview you need a lawyer to handle your stuff. If you get a RFE you need a lawyer. Weigh these options before deciding to inform INS about address change. You can always get the H1 approval without mentioning where ypu exactly live...

yours is a complicated and convoluted query. I suggest you talk to a lawyer about this....I am not one...
 
Dear Jaxen,

Thank you for the answers. The timing for me is really very tricky. I originally depended on the follow-to-join. But I recently found to my horror that that became a nightmare too. Just started to learn about the H option.

I talked to a lawyer. He is very helpful even though vague in answering some specific questions sometimes. The answers from him are the same as yours.

About the H1B, the one I have now starts 2 years ago, has 1 year left on it. It seems like I need a H1B transfer. The last time I got the H1B, I did not do anything to it at all. I surrendered the I-94 with it to the port the last time I left US (entered using AP). My passport was never stamped.

Here are my questions:

1) Do I ask my new employer to do a H1B transfer or what?

2) If it is a H1B transfer, what will happen to the H1B with the old employer, do I still have a valid H1B status with them if I finally decide not to leave?

3) What time do I have to start to work for the new employer? If I do not work for them at all under the H1B(e.g., stick with the old company), what happens to the H1B?

4) If I use the the approved H1B transfer from the new employer and start to work for the new employer after I come back, then I do not have any pay stub or so, I want to get the H1B stamped at a consulate. Will that be a problem? What kind of proof do I need to produce then?

5) Is there a way to get H1B stamped in the US before I leave?

6) Does my wife get the H4 from here in the US (e.g., Do I have to ask the new employer a H4 for her the same time they are doing my transfer?) or she can just go directly to the consultate to start from scratch from there?

7) If I use the H1B from the present employer, one thing I am concerned is that after my wife get her H4, I will leave the company, they may select to revoke the H1B. Will she loose her H4 status then? Or let's say, I use the old H1B, get her H4, after she get in the US, I leave the company. What happens then?

Thank you very much for any input!

wy
 
Is it possible to go to Canada to get H1B stamped?

Hi, wy2001,

I almost have the same problem as yours. I used Ap once last month, and my current H1B status expires next year. However, my I-140 has not been approved yet (with concurrently filed I-485). It takes so long, and my curreny employer told me that I can only work here till the end of this year.

So, since I used AP, I have probably the status of adjustee. Also I got my H1B status inside US, and never got a H1B stamp on my passport. I want to change back to H1B status now, in case my I-140 or I-485 gets denied -- then I have to go.

I am thinking to go to Canada to apply for a H1B visa stamp on passport. My AP expired this July. I guess that if my H1B application in Canada gets denied, I still can use my AP to enter US.

I don't know if it is a good idea. Anyone with this experience please help. Thanks in advance.

Or, is that possible that I find another company and they apply a new H1B for me, then I go ahead and change job at the end of this year before the current employer lay off me? I still have question on this issue - since I used AP, am I eligible to apply for a new H1B (or H1B transfer)? ---If not, can I go to outside of US, to get the NEW H1B visa? (Even I used AP, but I never applied EAD).

Thx.
 
Used AC21 - New H1B

Hello All
I used AC21 and joined a new company. I plan to get married sometime soon and wondering how I can bring my wife as dependent.
My company is willing to sponser for new H1B and I talked to my lawyer.
My lawyers says
1) My case is a complicated one, however technically everything is correct and I can apply for new H1B.
2) He says that I might have to be outside US at the time of applying and he will confirm me shorthly on that.

Unique case but on paper everything looks correct.

US consulate might have some issues like
1) Why do u need new h1B when you have EAD?
Just to bring your wife - Not sure how they might react to this.
2) new H1B can be used as backup incase i485 is denied. Does not look like valid reason.
Eventhough everything looks correct on paper, reasoning looks weird because we are using up a new H1b quota when there is no need in the first place to word as far as INS is concerned.
New H1B in this wobbling economy does not sound good.
But well, everything looks correct on paper and INS has little reason to deny. But who knows.

Someone is this forum says that one is abondoning i485 when he applies for new h1b, and this is completely false.

I will let you all know when I hear from my lawyer as to whether one should be outside the country at the time of apply for new H1B.

Can one goto canada for new H1b or is it better to go to India.
 
gc_luckyguy,

I have the same questions as you have. I would like to hear from one knowlegeable about this to give us some advices. Especially get stamp in Canada or back to home country? What if asked about H1B motives?

Thanks a lot,

wy
 
filing 140 & 485 wife's status ....

Hello

I have few questions regarding my wife's status.I am on H1 and my employer is filing my GC.My LC has been certified recently and I will be applying for 140 & 485 simultaneously.

My wife was in H1 and she got laid off in december.She found a new job and her H1 was filed on Jan 9th.We got the lin number and yesterday we saw that there was query for additional information .Her employer did not get the info yet and we are waiting for it.Does this pose any problem for her while applying for 485?Should she change her status to H4 in the mean time to be in status or is her present status fine.


Thankyou so much
 
new h1b or transfer either one is fine

1) My lawyer says that it is better to apply in India. However canada should not be problem as my master was here in US.
Bottomline, go to india and their will not be any issues.

2) My lawyer is saying that I can apply for H1 transfer eventhough i was laid of 6 months ago. He saying that he has seen transfer cases being approved, inspite of a long gap.
I am not sure how this works. Well I am in status as my I485 is pending and what is wrong is applying for transfer.
Cann someone throw some info on this. Transfer is better because one need not go to consulate for visa.

3) My lawyers says that there is no issue apply for a new h1b while in the US. Technically everything is correct.
The good reason for chennai consulate would be
1) My current employer has given me permanent employment and he wants h1b as backup as I 485 can go either way.
 
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