Not to scare anyone but here's a case that happened very recently with a person i know. Lets call him Joe. Although Joe's story had a happy ending but these unfortunate scenarious need to be considered.
Joe, who is on EAD (but has a "valid H1B" stamped on Passport) receives a RFE for I485. He gets scared, talks to his lawyer and decides to exit out and re-enter on H1B just in case 485 gets denied down the line.
He goes to India and tries to re-enter on H1B. He is refused at POE by the officer. The officer said that - since he had used AP in his prior re-entry, he will have to use AP to enter again. If he wants to enter on H1B he can but his 485 will be considered abandoned.
This guy argued with the officer but was of no use. So Joe re-enters using his AP.
Joe now talks to various lawyers who agree that the POE office should not be doing that and that he (Joe) is eligible to enter on H1B. (Cronin memo??)
So he now takes a copy of that memo, goes out to Canada and tries to come back on H1B. The same thing happened. The POE officer refused to look at the memo, said the same as POE officer in 1st case and Joe had to re-enter on AP.
Note: Joe has always been working for the petitioning employer.
He gave up on his trying to get on H1B attempt. Fortunately, his 485 got approved.
Now,
- we dont know what would have happened if Joe insisted on coming on H1B or that he had not carried his AP with him. Could the POE do something that would screw his 485. (Perhaps not, but Joe did not want to take that risk).
- In both cases, the POE were courterous but firm in their demeanour.
( with the present administration making so many changes and memos coming out and replacing\rescinding old memo, there is bound to be chaos.)
I would say, carry an approved AP with you as backup before you leave the country especially if you have entered on AP prior (immediate previous visit) (even though you now intend to re-enter on H1B)..
Joe, who is on EAD (but has a "valid H1B" stamped on Passport) receives a RFE for I485. He gets scared, talks to his lawyer and decides to exit out and re-enter on H1B just in case 485 gets denied down the line.
He goes to India and tries to re-enter on H1B. He is refused at POE by the officer. The officer said that - since he had used AP in his prior re-entry, he will have to use AP to enter again. If he wants to enter on H1B he can but his 485 will be considered abandoned.
This guy argued with the officer but was of no use. So Joe re-enters using his AP.
Joe now talks to various lawyers who agree that the POE office should not be doing that and that he (Joe) is eligible to enter on H1B. (Cronin memo??)
So he now takes a copy of that memo, goes out to Canada and tries to come back on H1B. The same thing happened. The POE officer refused to look at the memo, said the same as POE officer in 1st case and Joe had to re-enter on AP.
Note: Joe has always been working for the petitioning employer.
He gave up on his trying to get on H1B attempt. Fortunately, his 485 got approved.
Now,
- we dont know what would have happened if Joe insisted on coming on H1B or that he had not carried his AP with him. Could the POE do something that would screw his 485. (Perhaps not, but Joe did not want to take that risk).
- In both cases, the POE were courterous but firm in their demeanour.
( with the present administration making so many changes and memos coming out and replacing\rescinding old memo, there is bound to be chaos.)
I would say, carry an approved AP with you as backup before you leave the country especially if you have entered on AP prior (immediate previous visit) (even though you now intend to re-enter on H1B)..