Can you remain in H1 after using AP for re-entry ??

M

max2k1

Registered Users (C)
Scenario:
Have a valid H1 -- but stamping has long expired

Can you use AP for re-entry to the US ( because H1 visa stamped has expired)
but still use H1 for employment ?

Or should you *necessarily* begin to work on EAD ? ( and abandon the H1 status ?)

Would like to keep H1 status as much as possible.

Also, can you file for 7th yr (& beyond) H1 renewal just on the basis of a pending 485 ?
( Even if you are not the primary in the 485 - just a dependent ? ) ... again intent is to keep H1 valid as long as you can.

Thanks all :)
 
max2k1 said:
Scenario:
Have a valid H1 -- but stamping has long expired

Can you use AP for re-entry to the US ( because H1 visa stamped has expired)
but still use H1 for employment ?

---> Yes

Or should you *necessarily* begin to work on EAD ? ( and abandon the H1 status ?)

---> No need.

Would like to keep H1 status as much as possible.

Also, can you file for 7th yr (& beyond) H1 renewal just on the basis of a pending 485 ?
( Even if you are not the primary in the 485 - just a dependent ? ) ... again intent is to keep H1 valid as long as you can.

----> I think you can, but prefer other gurus comment on it.

Thanks all :)
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You have your reasons for not using EAD though, but please be aware thatif you renew H1 you will have to fly back to India for stamping as the visa revalidation procedure was recently scrapped.
 
golumolu said:
You have your reasons for not using EAD though, but please be aware thatif you renew H1 you will have to fly back to India for stamping as the visa revalidation procedure was recently scrapped.
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Can you provide the link to visa revalidation scrap.
 
golumolu said:
You have your reasons for not using EAD though, but please be aware thatif you renew H1 you will have to fly back to India for stamping as the visa revalidation procedure was recently scrapped.
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Exactly -- that's why I want to use AP solely for travel and re-entry
AND continue with my H1 till the 485 process is completed.

If that's the case, I don't need to ever stamp my H1 - right ?
 
Thanks rk4gc and 140_takes_4ever !

I thought if you enter using AP, your status would be a "Parolee" ....
So If I just show current H1 approval plus my AP and 485 receipt at the POE, they would automatically understand it ? Without my having to explain anything ?

Again - I don't ( and won't) have a valid H1 visa stamp - just the H1 approval.

Thanks :)
 
my 2 cents

I would be careful with AP/H1B. Your status is what the officer at POE stamps on your I-94 form and it will be definitely "parolee" rather than H1B if you enter on AP. Accordingly, as parolee, you need EAD to work because your H1B status is invalidated. Better consult a lawyer.
 
ND022202 said:
I would be careful with AP/H1B. Your status is what the officer at POE stamps on your I-94 form and it will be definitely "parolee" rather than H1B if you enter on AP. Accordingly, as parolee, you need EAD to work because your H1B status is invalidated. Better consult a lawyer.
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Do you have any pointers to support this ? Just want to make sure.
 
rk4gc said:
Do you have any pointers to support this ? Just want to make sure.
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ND022202 - I would be interested in getting details - yours seems to be the only one that says it can't be done.

rk4gc --> so when you do enter with AP and also show H1 docs, do you get your I94 stamped till the H1 validity date ( like how it works when you enter with just the H1 ) ?

Am confused -- on the one hand, the officer will have to stamp your AP -
On the other, would he write "H1B" in the I94 stamp ???
 
AP/H-1B Facts

When you enter on AP, you become a parolee (as stamped on the I-94). However, your right to continue working for the same employer is not jeopardized, even if you don't have an EAD, providing your H-1B status was current when you entered. However, strictly you are no longer in H-1B status. H-1B status can be re-established in two ways: 1) by leaving the country, revalidating your H-1B stamp, and re-entering using the H-1B stamp, or 2) by extending your H-1B. At that point, you are no longer a parolee, and if you want to enter again using AP, you may have to get a new AP document.

If you have a valid H-1B stamp and AP you have a choice of which to use, but officers at entry are isntructed to advise use of the valid H-1B rather than the AP.

There is a lot of misinformation around on this. If you search around the web for the famous Cronin Memo of 5/6/2000, you will see the official USCIS position.
 
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bslater said:
When you enter on AP, you become a parolee (as stamped on the I-94). However, your right to continue working for the same employer is not jeopardized, even if you don't have an EAD, providing your H-1B status was current when you entered. However, strictly you are no longer in H-1B status. H-1B status can be re-established in two ways: 1) by leaving the country, revalidating your H-1B stamp, and re-entering using the H-1B stamp, or 2) by extending your H-1B. At that point, you are no longer a parolee, and if you want to enter again using AP, you may have to get a new AP document.

If you have a valid H-1B stamp and AP you have a choice of which to use, but officers at entry are isntructed to advise use of the valid H-1B rather than the AP.

There is a lot of misinformation around on this. If you search around the web for the famous Cronin Memo of 5/6/2000, you will see the official USCIS position.
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bslater ( I keep reading your name as "blaster" - but hey that's just me :) )

Thanks for the detailed post ... now it kinda makes more sense ... the part I don't like is getting a H1 visa stamp from abroad ... I'd rather not spend one more day waiting in line !! ( as if FP appointments wasn't enough ).

Well I guess I would have to take the chance and go on EAD/AP totally to avoid further confusion - thanks :)
 
Hold up people, H1 is a dual intent visa, you can be on hold 2 different statuses (if that is a word, but you know what I mean) using it. The first is the H1 and the second Adjustee or parolee.

The issue at hand is not what status you are on but what status you work under. (Atleast that is how I interpret the question). As long as you have NOT used the EAD to work on, your status remains H1 UNLESS you fail to renew your H1 when it expires.

So now we have to different things, your status in this country is that of an adjustee or parolee, but you work on your H1, and that is perfectly fine under the dual intent of the H1. If you want to change companies now, things get slightly complicated, but not too much. You can still file for H1 transfer.

During this whole process you DO NOT need to get a H1 stamp on your passport. Since your status is that of adjustee, you enter and exit the country on your AP. And when your 6 years of H1 are up, and you dont have your green card in hand, you can apply for a 7th year extension. And no you don't need to leave the country. Hope that clarifies things.
 
140_takes_4ever said:
Hold up people, H1 is a dual intent visa, you can be on hold 2 different statuses (if that is a word, but you know what I mean) using it. The first is the H1 and the second Adjustee or parolee.

The issue at hand is not what status you are on but what status you work under. (Atleast that is how I interpret the question). As long as you have NOT used the EAD to work on, your status remains H1 UNLESS you fail to renew your H1 when it expires.

So now we have to different things, your status in this country is that of an adjustee or parolee, but you work on your H1, and that is perfectly fine under the dual intent of the H1. If you want to change companies now, things get slightly complicated, but not too much. You can still file for H1 transfer.

During this whole process you DO NOT need to get a H1 stamp on your passport. Since your status is that of adjustee, you enter and exit the country on your AP. And when your 6 years of H1 are up, and you dont have your green card in hand, you can apply for a 7th year extension. And no you don't need to leave the country. Hope that clarifies things.
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140_takes_4ever, I remember you used AP with H1 ? What stamp you got on your I-94 ?
 
Parolee if I am not mistaken. But hey I am still working on my H1. My lawyer renewed my H1 a couple of months ago, and that is what I submitted to HR. No problems. :)
 
140_takes_4ever said:
Parolee if I am not mistaken. But hey I am still working on my H1. My lawyer renewed my H1 a couple of months ago, and that is what I submitted to HR. No problems. :)
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140_takes_4ever -- thanks for the detailed post.

So you've actually gone through this scenario - that gives me confidence :)

So when you entered as a "parolee" - your I94 was stamped only till the expiry date of the AP ?

Good - that you can also renew past the 6yr limit based on pending AOS.
Did you have to show your H1 approval docs alongwith AP at the POE ?
 
Facts again

140_takes_4ever, I chose my words very carefully. While you are still able to work after entering on AP, it is the original employment authorization obtained during the H-1B application process that permits continued employment. This does not mean that the H-1B is still in operation. See the Cronin memo mentioned in my post:

"...if the alien's H-1 or L-1 employment authorization would not have expired, had the alien not left and returned under advance parole, the Service will not consider a paroled adjustment applicant's failure to obtain a separate employment authorization document to mean that the paroled adjustment applicant engaged in unauthorized employment by working for the H-1 or L-1 employer between the date of his or her parole and the date to be specified in the final rule."

Again, do not assume that your H-1B is still in operation after entering on AP. While H-1B status can be re-established as I mentioned, it is not true to assume that is does not go away, at least temporarily, when you enter on AP. I am making this distinction to clarify an improtant detail. The devil is in the details. In some cases, people may wish to maintain H-1B status rather than any other for specific reasons, and if it is no longer valid, then there could be unforseen consequences.
 
4. If an H-1 or L-1 nonimmigrant has traveled abroad and reentered the United States via advance parole, the alien is accordingly in parole status. How does the interim rule affect that alien's employment authorization?

A Service memorandum dated August 5, 1997, stated that an "adjustment applicant's otherwise valid and unexpired nonimmigrant employment authorization ...is not terminated by his or her temporary departure from the United States, if prior to such departure the applicant obtained advance parole in accordance with 8 CFR 245.2(a)(4)(ii)." The Service intends to clarify this issue in the final rule. Until then, if the alien's H-1 or L-1 employment authorization would not have expired, had the alien not left and returned under advance parole, the Service will not consider a paroled adjustment applicant's failure to obtain a separate employment authorization document to mean that the paroled adjustment applicant engaged in unauthorized employment by working for the H-1 or L-1 employer between the date of his or her parole and the date to be specified in the final rule.
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There you go. That is the full Q & A in the cronin memo. You can read the whole memo here: http://www.shusterman.com/cronin51600.html

I am sorry but I still don't see the point you are driving at. Clearly, the memo states that they are awaiting the final rule. Clearly, the memo states that if you enter on AP, your H1 status is NOT lost.

And to boot, my lawyer, seems to think that it is perfectly fine for me to be working on H1 while entering the country multiple times on AP.
 
max2k1 said:
So you've actually gone through this scenario - that gives me confidence :)

So when you entered as a "parolee" - your I94 was stamped only till the expiry date of the AP ?

Good - that you can also renew past the 6yr limit based on pending AOS.
Did you have to show your H1 approval docs alongwith AP at the POE ?
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Entered the US multiple times on an AP. Still working on H1.

The I94 is stamped for 1 year if I am not mistaken. (don't worry about this bit, under Adjustee rules, you are legal to stay behind inspite of the fact that the I94 has expired)

You do not have to show any other documents when entering the country on AP other than the AP itself. You don't even need the 485 with you. Last time I entered the country, I din't even have copies of my H1/485 with me. Just gave them AP, got my stamp and walked out in 5 mins. Search the archives for more information on AP and its usage.
 
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