Can i travel for Xmas??? please advice

[andreadebiase]

I am married to an American citizen, I have got my work permit already and my interview. I am waiting for an answer now so i am not approved for the green card yet BUT in ADDITION i have a valid H1b visa in my passport expiring in March.
my lawyer suggests not to because i am in a transitory period (adjustment of status) but i found in the USCIS web site that if you have a valid H1b visa and H1b status you don`t need to request an ADVANCE PAROLE. Now, i know i have a valid H1b visa in the passport but am i still an H1b status?

CAN I GO SEE MY PARENTS THIS XMAS???

 

[sarrebal]

I am married to an American citizen, I have got my work permit already and my interview. I am waiting for an answer now so i am not approved for the green card yet BUT in ADDITION i have a valid H1b visa in my passport expiring in March.
my lawyer suggests not to because i am in a transitory period (adjustment of status) but i found in the USCIS web site that if you have a valid H1b visa and H1b status you don`t need to request an ADVANCE PAROLE. Now, i know i have a valid H1b visa in the passport but am i still an H1b status?

CAN I GO SEE MY PARENTS THIS XMAS???

Enjoy your trip!

I travel with my H1B while AOS pending and absolutely had no problem whatsoever.
Tell your lawyer to read the instructions a little better.

 

[dr_lha]

Just to be Devil's Advocate here: What happens if the AOS is approved while the person is abroad? Doesn't that invalidate the H-1B? It's my understanding that H-1B is only valid while AOS is "pending".

I don't personally think it will be a problem, I'm just curious as to how this rule can be interpreted? Does an H-1B continue to be valid even after a Green Card is issued? I personally don't think so.

 

[Al Southner]

Relax

Just to be Devil's Advocate here: What happens if the AOS is approved while the person is abroad? Doesn't that invalidate the H-1B? It's my understanding that H-1B is only valid while AOS is "pending".

I don't personally think it will be a problem, I'm just curious as to how this rule can be interpreted? Does an H-1B continue to be valid even after a Green Card is issued? I personally don't think so.

Dr. Lha,

If approved while he is outside the country, it doesn't invalidate his H1B visa. Remember that it is a dual intent visa, though you can't be in two status, USCIS realize the importance of acting cautiously with regard to termination of H1B visa.

Personally, until USCIS makes a policy judgment on this matter, then we should relax and let them decide it...

 

[andreadebiase]

I would like to point out that at the end of the interview i got no answer POSITIVE nor NEGATIVE, i was required to submit more documents which i have already provided them within the day. Basically the "ball" is in their field and i have to wait for their answer which could be Yes, NO or anothor Interview or documents...does this change anything in regard of risking to be arrested at the airport?

 

[GotPR?]

Dr. Lha,

If approved while he is outside the country, it doesn't invalidate his H1B visa. Remember that it is a dual intent visa, though you can't be in two status, USCIS realize the importance of acting cautiously with regard to termination of H1B visa.

As far as I know, consensus is one needs AP to enter the US if I-485 got approved while traveling. I thought murthy site had that Q&A before.

Personally, until USCIS makes a policy judgment on this matter, then we should relax and let them decide it...

Sorry, but I don't agree. if CIS is not clear about the issue, I'd suggest to go strict rather than relax to avoid potential problem.

 

[amishah]

I thought using EAD invalidate the H1B.
Also valid H1b alone is not enough. He will need a multiple entry stamp too.
Correct me if I am worng.

 

[GotPR?]

I thought using EAD invalidate the H1B.
.

Need to make it clear what is invalidated. Using EAD will kill H1B status, but not H1 visa/petition. Let me pull some example.
One has valid EAD and H1, and somehow choose to work under EAD, then s/he is not H1 status anymore. Then next time s/he enter the US, s/he uses H1 stamp , then s/he gets back to H1 status again.
This is not very common as nobody uses EAD to work for the same employer when H1 is valid, but consdering H4 dependent visa holder who has EAD, it can happen.

 

[dr_lha]

I thought using EAD invalidate the H1B.

Correct. Its not clear if the OP has "used" their EAD though.

Also valid H1b alone is not enough. He will need a multiple entry stamp too.
Correct me if I am worng.

Well you need the visa stamp, yes.

Interesting answers to the question I asked. Its clear this issue might not as cut an dried as some think.

 

[andreadebiase]

i need also to point out that i have my work permit but i am still working under the H1b until March. In march, if AOS is still pending, i will continue to work with my new work permit. But yes my work permit became valid 2 weeks ago and is good to go.

 

[NeShawn]

Try this website for an answer:

http://experts.about.com/q/Immigration-Issues-344/index.htm

 

[andreadebiase]

Well, in the above web site thay said that it's ok but only after they asked me what country i am from. This is very scketchy..i mean..is the non requirement for advance parole while on H1b relative to what country you are from? laws are laws why would it make a difference if i am italian or not? WTF!!! what if the officer at the border hates italians?

 

[sarrebal]

laws are laws why would it make a difference if i am italian or not? WTF!!! what if the officer at the border hates italians?

That's false.
Nationality has nothing to do with it. They probably profile internally (because it would be illegal) for security reasons but not for anything else.
If the officer at the POE hates Italians (very unlikely anyways) then you just show him the I-131 instructions where it clearly says that you could travel with your H visa while AOS is pending.
You have nothing to worry about it.
Enjoy Christmas with your parents in Italy. I miss going to the stadium and watch soccer there.

 

[pianoplayer]

Need to make it clear what is invalidated. Using EAD will kill H1B status, but not H1 visa/petition. Let me pull some example.
One has valid EAD and H1, and somehow choose to work under EAD, then s/he is not H1 status anymore. Then next time s/he enter the US, s/he uses H1 stamp , then s/he gets back to H1 status again.
This is not very common as nobody uses EAD to work for the same employer when H1 is valid, but consdering H4 dependent visa holder who has EAD, it can happen.

No, I am sorry, but this is not correct. One cannot "revive" H1B status after losing it.

According to current interpretation of the law, the OP can keep using the H1B to travel while in AOS, until he USES the EAD, i.e. signs an I9 with an employer based on the EAD. At that point, H1B status is lost and even if the visa is unexpired, it is no longer valid for entry.

 

[dr_lha]

According to current interpretation of the law, the OP can keep using the H1B to travel while in AOS, until he USES the EAD, i.e. signs an I9 with an employer based on the EAD. At that point, H1B status is lost and even if the visa is unexpired, it is no longer valid for entry.

Yeah, but what about if the AOS is approved while the person is abroad?

 

[TheRealCanadian]

No, I am sorry, but this is not correct. One cannot "revive" H1B status after losing it.

Sure you can. The petition remains active, and if you are entering the US to work for the H-1 employer under the terms of the H-1 petition, then you can get back into H-1 status.

According to current interpretation of the law, the OP can keep using the H1B to travel while in AOS, until he USES the EAD, i.e. signs an I9 with an employer based on the EAD. At that point, H1B status is lost and even if the visa is unexpired, it is no longer valid for entry.

No. First off, merely presenting the EAD to fill out an I-9 doesn't invalidate the H-1. If one is still working for the H-1 employer under the terms of the petition, the mere act of using the EAD to prove employment eligibility doesn't violate H-1 status, any more so that an H-4 holder using an EAD to get an SSN.

Second, until USCIS makes a formal written determination that the alien is no longer in H-1 status, the visa stamp remains valid and can be used for re-entry.

 

[GotPR?]

No, I am sorry, but this is not correct. One cannot "revive" H1B status after losing it.

According to current interpretation of the law, the OP can keep using the H1B to travel while in AOS, until he USES the EAD, i.e. signs an I9 with an employer based on the EAD. At that point, H1B status is lost and even if the visa is unexpired, it is no longer valid for entry.

That is not correct. Everytime one enters the US, s/he gets new status. Since petition is valid and H1 is admissible even though AOS is pending, s/he can be H1 status again.

I have not yet seen law or guidance which say non-immigrant visa stamp is invalid after AOS filing.

 

[pianoplayer]

Sure you can. The petition remains active, and if you are entering the US to work for the H-1 employer under the terms of the H-1 petition, then you can get back into H-1 status.



No. First off, merely presenting the EAD to fill out an I-9 doesn't invalidate the H-1. If one is still working for the H-1 employer under the terms of the petition, the mere act of using the EAD to prove employment eligibility doesn't violate H-1 status, any more so that an H-4 holder using an EAD to get an SSN.

Second, until USCIS makes a formal written determination that the alien is no longer in H-1 status, the visa stamp remains valid and can be used for re-entry.

Well, your interpretation is interesting. It WOULD be convenient if it worked that way. I suggest you address yourself to AILA recommendations, which I have always found to be better than those found on a NG. But that's just me.

 

[pianoplayer]

That is not correct. Everytime one enters the US, s/he gets new status. Since petition is valid and H1 is admissible even though AOS is pending, s/he can be H1 status again.

I have not yet seen law or guidance which say non-immigrant visa stamp is invalid after AOS filing.

I have never said that the visa stamp is invalidated by AOS FILING. Read my post carefully.

 

[GotPR?]

I have never said that the visa stamp is invalidated by AOS FILING. Read my post carefully.

Sorry, I'll correct it to "when EAD was used for employment".