Can I still keep H1-B?

[rey]

I am going to apply the H1-B visa in Mexico,
but a question just came up my mind.

I am holding H1-B visa now, and my I-485 is pending.I have Advanced parole.

If everything is ok, I'll use the approved H1-B to return US.

But if my H1-B gets denied, I have to use AP to return.

Question is, can I still maintain an H1-B status, and still use H1-B for the same company, even my H1-B visa is denied? And if it is the case, can I still extend my H1-B afterwards?

Are the H1-B visa and H1-B status the same thing?

many thanks!

 

[GotPR?]

If you used AP, you can not maintain H1 "status" anymore.. Your status will be AOS pending.. However, whether H1 is still valid to work or not is different matter.
In general, if you still keep valid H1, you can work with H1 even though you used AP to enter and become AOS pending status and you can even extend H1.

In this case, you have approved H1 petition, but stamp is denied.
Question is approved H1 petition is still valid or not after visa stamp is denied.

I have seen this question a couple of times(and i asked in this forum too),
but no answers were provided. so far. I'm very curious.

 

[Madison04]

H1 visa and H1 status are different things. A denial stamp in your passport only means that you won't have a H1 visa, but you MAY be able to retain your H1 status. The following is an email that my wife received from her company lawyer (a big technology company) regarding re-entry with AP. It doesn't answer exactly what you asked, but at least will provide you with some thoughts:

******************************************************
If you travel pursuant to advance parole, you do not need to apply for a visa, you would simply present your advance parole documents upon re-entry to the U.S.

From a technical standpoint, when you re-enter pursuant to advance parole, you should continue your employment with **** pursuant to a valid Employment Authorization Document (you will need to complete a new I-9 form). At the same time, if you maintain the same position with ****, you can maintain your H-1B status, that is, you can still apply for an H-1B visa during the validity period of your H-1B status. If you exit once again and re-enter with an H-1B visa, you would then technically be working pursuant to your H-1B status (and will need to complete a new I-9 form).

Please note that any time spent working pursuant to an EAD while you concurrently hold H-1B status will count against your 6 year limit in H-1B status.
******************************************************

It sounds to me like, even if you use AP for re-entry, you'll still have your H-1B status if you maintain the same employment.

 

[GotPR?]

H1 visa and H1 status are different things. A denial stamp in your passport only means that you won't have a H1 visa, but you MAY be able to retain your H1 status. .

In theory, that is right. But what I wonder is
if consulate denied visa stamp, for example, for education issue, he in general
can not even enter/work in the US with H1.
However, the person who was denied for visa stamp for the same reason
can enter the US if he has AP and can keep working with H1.
I'm wondering how this inconsistency is explained and that is what
thread starter is questioning.
Do you have any thought on this issue ?

 

[sick_of_waiting]

I have read at several places that the use of advance parole does not cancel out H1-B visa. In fact, if you have both an advance parole and a stamped H1-B visa, you can show both at immigration and they should let you in.

If you used AP, you can not maintain H1 "status" anymore.. Your status will be AOS pending.. However, whether H1 is still valid to work or not is different matter.
In general, if you still keep valid H1, you can work with H1 even though you used AP to enter and become AOS pending status and you can even extend H1.

In this case, you have approved H1 petition, but stamp is denied.
Question is approved H1 petition is still valid or not after visa stamp is denied.

I have seen this question a couple of times(and i asked in this forum too),
but no answers were provided. so far. I'm very curious.

 

[GotPR?]

I have read at several places that the use of advance parole does not cancel out H1-B visa. In fact, if you have both an advance parole and a stamped H1-B visa, you can show both at immigration and they should let you in.

No, using AP to enter the US does not cancel H1 visa, but status will be AOS pending , not H1B. H1B is still good to work if it is valid. The point of the original question is if approved H1 petition is still valid or not when stamp is denied.