Can we enter US on AP and then later get H1 stamps again?

K

kiranmm13

Registered Users (C)
Hello all,
I just got my H1 renewed and I received my new I-797 with I-94 attached to it. This new one will expire in May 2010. That will be my 6 years on H1B
Right now H1 stamp on passport expires in October 2008, Me and wife are going to India in November so I guess we will have to go through the stamping process again.
We have applied for 485 and already have EAD and AP. Wife is actually already working using AP (she came on H4).
I was thinking can we return to america in November just by using AP and what are the disadvantages of doing that?

1.) Can i Still get H1B stamped on my visa again lets say sometime next year?
2.) Can I apply for renewing my H1B visa again after 2010?
3.) If we enter on AP what will be status of my wife; currently she is on H4, working on EAD and has AP.
4.) So basically if we enter on AP what is our status?

Thanks all for the answers in advance.
 
kiranmm13 said:
Hello all,
I just got my H1 renewed and I received my new I-797 with I-94 attached to it. This new one will expire in May 2010. That will be my 6 years on H1B
Right now H1 stamp on passport expires in October 2008, Me and wife are going to India in November so I guess we will have to go through the stamping process again.
We have applied for 485 and already have EAD and AP. Wife is actually already working using AP (she came on H4).
I was thinking can we return to america in November just by using AP and what are the disadvantages of doing that?

1.) Can i Still get H1B stamped on my visa again lets say sometime next year?
Click to expand...
Yes
2.) Can I apply for renewing my H1B visa again after 2010?
Click to expand...
Yes
3.) If we enter on AP what will be status of my wife; currently she is on H4, working on EAD and has AP.
Click to expand...

Since she is working on EAD, she's not on H4 anymore.
 
Thanks for your reply.

We have already file I-539 for my wife's H4 extension (next week it will be three months we have filed I-539).

So basically we do not have to do anything about booking consulate dates and getting stamping done right?
We just have to show our AP at POE and it should take care of everything?
Is there any complications normally when you use your AP for POE rather than stamped H1b visa?
 
kiranmm13 said:
Thanks for your reply.

We have already file I-539 for my wife's H4 extension (next week it will be three months we have filed I-539).

So basically we do not have to do anything about booking consulate dates and getting stamping done right?
We just have to show our AP at POE and it should take care of everything?
Is there any complications normally when you use your AP for POE rather than stamped H1b visa?
Click to expand...

AP is a piece of document which, with valid passport, will allow you for re-admission to the US after an emergent, temporary travel. You do not need any other visa stamp along with it to be re admitted unless the AP itself has any problem e.g. the pending I-485 was denied for any reason while you are abroad, you are subject to the 3 or 10 year bar because you were out of status for certain time period.
To make it simple, if you are normal immigrant with no complication in your immigrant status, just use the AP without any other visa stamps and do not waste your effort in the consulate overseas.
 
Thanks mmed for the reply.

So once I come back on AP still my H1b is valid right, I can still keep on working for the same employer with H1 or do I have to switch to EAD with the same employer. (Previously m_img has also said that I can infact even renew my H1 visa)

My wife will obviously be able to work on her EAD (as she is doing now) right?

Thanks again for your replies always
 
kiranmm13 said:
Thanks mmed for the reply.

So once I come back on AP still my H1b is valid right, I can still keep on working for the same employer with H1 or do I have to switch to EAD with the same employer. (Previously m_img has also said that I can infact even renew my H1 visa)
---------------------you can work on H1 status and can file H1 extension in future
My wife will obviously be able to work on her EAD (as she is doing now) right?
----she can work on EAD till EAD is valid.
Thanks again for your replies always
Click to expand...
--------------
 
I want to clarify you...Your wife is not in H4 status anymore since she had used her EAD to work. She has to travel in AP only. Probably it's better...both of you use AP when enter USA.

If you are going to work for the same employer who had sponsoring your GC / H1...still you will be in H1 status even you guys used AP at Port of Entry.

kiranmm13 said:
Thanks mmed for the reply.

So once I come back on AP still my H1b is valid right, I can still keep on working for the same employer with H1 or do I have to switch to EAD with the same employer. (Previously m_img has also said that I can infact even renew my H1 visa)

My wife will obviously be able to work on her EAD (as she is doing now) right?

Thanks again for your replies always
Click to expand...
 
kiranmm13 said:
Hello all,
I just got my H1 renewed and I received my new I-797 with I-94 attached to it. This new one will expire in May 2010.
That will be my 6 years on H1B
Right now H1 stamp on passport expires in October 2008, Me and wife are going to India in November so I guess we will have to go through the stamping process again.
---------------If you enter US before October 2008 then at POE show valid visa stamp in passport AND H1 extension approval at POE and you will get I-94 till H1 extension approval notice

We have applied for 485 and already have EAD and AP. Wife is actually already working using AP (she came on H4).
---------------you wife is using EAD and not AP
I was thinking can we return to america in November just by using AP and what are the disadvantages of doing that?

1.) Can i Still get H1B stamped on my visa again lets say sometime next year?
-------Yes you can
2.) Can I apply for renewing my H1B visa again after 2010?
----------------------Yes
3.) If we enter on AP what will be status of my wife; currently she is on H4, working on EAD and has AP.
-------------------She is NOT on H4 as she used EAD, if she use AP to enter then she will be Parole and AOS pending
4.) So basically if we enter on AP what is our status?
---------------Parole and AOS pending but you can be on H1 if you are going to work with with same employer who filed latest H1 for you.
Thanks all for the answers in advance.
Click to expand...
** if you have time then why not to get H1 and H4 visa stamps from US consulate? if problem in Visa stamp then use AP

Here is some info from good lawyer:
When H-1B/L-1 professionals and dependant family members in H-4 or L-2 make an overseas trip and return on such nonimmigrant visa status when they are no long in lawul H/L visa status, they are subject to potential denial of I-485 applications on two different grounds unlike those who use and return to the U.S. on a valid Advance Parole. When it comes to the impact of unlawful H/L nonimmigrant status at the time of returning from the overseas trip on the pending EB-485 applications, the key issue remains denial of EB-485 applications on the ground of the unlawful H/L visa status or unauthorized employment when they return using a valid Advance Parole. Meanwhile, those who return to the country in H/L visa status without a valid Advance Parole can be subject to denial of the pending EB-485 applications on one another ground, to wit, abandonment of his/her 485 application because under the immigration rule, the returning of 485 applicant can keep his/her 485 application only when they entered in "a lawful H/L status if they enter on H/L visa status without an Advance Parole that had been issued prior to his/her departure from the U.S. The most bright-line situation can involve layoff or termination of H or L employment and withdrawal of the H-1B or L-1 petition by the employer. Since the rule requires that the alien was returning to resume the H/L employment to keep the pending I-485 application, return of such alien in H/L status presents a potential risk of denial of I-485 application not only on the violation of the nonimmigrant status but also on the ground of abandonment of pending I-485 application. When it comes to the first ground for denial, since the alien will be eligible for 245(k) benefit if the violation did not last longer than 180 days, the first ground can be overcome. Second ground of abandonment of application is a different story. Had the alien returned on an Advance Parole in an identical factual situation, he/she would be required to deal only with the first issue and not the second issue.
For the EB-485 applicants who are literally "in a lawful H/L status," it is obvious that it is to his or her benefit to travel on H/L visa status from the standpoint of potential 245(K) benefits eligibility in the future or continuing stay and work in a H/L status even after the denial of I-485 application for whatever grounds. The same may not be true with those who are not in a lawful H/L status when they return from an overseas trip not on an Advance Parole but on an H/L visa status. People often assume that there is a simple lithmus test or a rule that applies to every EB-485 applicant in H/L nonimmigrant situation when it comes to choosing either Advance Parole or H/L visa when they make an overseas trip. The law is sometimes more complicated than spider-web and not that simple as the lay people hope it is what they think. People should always seek legal counsel. As the USCIS increases issuing 485 RFEs, people should be more conscious of the issues which are presented in this posting.
 
Thanks satgym73, and ginnu for your replies.

ginnu thanks for that good information from the lawyer as well. I think I will use AP to return back and then continue to work on H1B. I plan to work with that same employer.

Normally I would have got H1 and H4 visa stamps done at US consulates but I am worried about PIMS and also 4 years back I had DUI conviction.
After that the DUI case I actually have got my H1B visa stamped on my passport 2 times from Matamoros mexico without any issues.
I know probably this case will again come and bite me while 485 but I will have to deal with that then. I have done all the necessary about the case from my side.

Do you think I have to take care of any other thing? I have applied for EAD renewals does any of this matter that process ? I will be going in late November or early december and I am hoping EAD will be approved till then as my and wife's current EAD expires on 15th Nov 2008.

ginnu your replies have always helped to clear up a lot of doubts, thanks a lot for that.

PD is Apr-2006
140 approved in March-2007
485 applied on 15th august 2007 (me and wife)
EAD and AP applied and approved (me and wife)
Applied for EAD renewal (1st week of august2008) - approval pending
AP expires in Jan 2009 so I will be back in US till then and then again apply for new AP.
 
kiranmm13 said:
Thanks satgym73, and ginnu for your replies.

ginnu thanks for that good information from the lawyer as well.
I think I will use AP to return back and then continue to work on H1B. I plan to work with that same employer.

Normally I would have got H1 and H4 visa stamps done at US consulates but I am worried about PIMS
--------------------the time you go for visa stamp I dent see problem due to PIMS.
and also 4 years back I had DUI conviction.
-------------------I dont think you will have problem.
After that the DUI case I actually have got my H1B visa stamped on my passport 2 times from Matamoros mexico without any issues.
I know probably this case will again come and bite me while 485 but I will have to deal with that then. I have done all the necessary about the case from my side.

Do you think I have to take care of any other thing? I have applied for EAD renewals does any of this matter that process ?
----------------EAD can be approved when you are out. But you need valid AP approved in hand Before you go out of US if you plan to use AP.
I will be going in late November or early december and I am hoping EAD will be approved till then as my and wife's current EAD expires on 15th Nov 2008.

ginnu your replies have always helped to clear up a lot of doubts, thanks a lot for that.

PD is Apr-2006
140 approved in March-2007
485 applied on 15th august 2007 (me and wife)
EAD and AP applied and approved (me and wife)
Applied for EAD renewal (1st week of august2008) - approval pending
AP expires in Jan 2009 so I will be back in US till then and then again apply for new AP.
Click to expand...
--------
 
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