Do we need to show AP while reentering US?

ar888

Registered Users (C)
I have a question.

My status is 485 filed but still working on H1. Went to India after obtaining Advance Parole for me, wife and kid. I came back, while reentering, I didn't show my AP as they didn't ask me and I have my I-94 stamped as H1B.

Now my question is, does my wife and kid have to show AP while reentering US even if they don't ask for it? They are coming back next month and my wife used EAD to work.Are there any complications involved.

Thanks in advance.
 
Since your wife is a derivative applicant she could use her H-4 multiple-entry visa or her AP to enter even though she is working on an EAD. This is my opinion, not a legal one.
 
Originally posted by mavishka
Since your wife is a derivative applicant she could use her H-4 multiple-entry visa or her AP to enter even though she is working on an EAD. This is my opinion, not a legal one.

No. She cannot use the H-4 since she violated her H-4 status by using the EAD. She needs AP to return. The child can use his or her H-4.
 
//No. She cannot use the H-4 since she violated her H-4 status by using the EAD. She needs AP to return. The child can use his or her H-4.//

In that case, will they ask for AP or do we have to show it even if they don't ask?
 
Thanks lahari2.

But my question is, if she has to use AP, will the authorities ask for AP when we give our passport to them?

Scenario1: Only give passport, and if they ask for AP, then produce AP.

Scenario2: Give passport & AP together, even if they don't realize that she has to use AP and were abt to stamp as H4.

What are the complications?
 
My experience

We re-entered US in Jan. 2003 using AP - POE was Los Angeles.
At LA airport, there were separate lines/queues/counters for US Citizens, non-immigrant visa holders, students, parolees etc.

We didn't know the procedure for using AP so went to the 'non-immigrant visa holders' counter. We told the immigration officer that we wanted to use AP ('coz we'd worked on EAD). On that he asked us to go and stand in the line for 'parolees'. There the officer saw our AP papers, asked a few questions like 'who do u work for' etc. and stamped one of the AP papers.

So I guess you need to know what you want to use (ar888, in your case, your wife have to use AP) and let the officers know about it.

Hope this helps.
 
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Thanks vidongre for sharing your experience.

Just out of curiosity, what is the reason for telling them that you wanted to use AP, what will happen, if you use your standard H1/H4 stamp on your passport? Is it expired?

In my wife's case, H4 isn't expired yet?
 
Originally posted by ar888
Thanks vidongre for sharing your experience.

Just out of curiosity, what is the reason for telling them that you wanted to use AP, what will happen, if you use your standard H1/H4 stamp on your passport? Is it expired?

In my wife's case, H4 isn't expired yet?

Your wife's H4 status EXPIRED the day she used her EAD. She therefore cannot use H4 visa stamp to enter US. If she does and is admitted (in error) she could be in for a lot of trouble with BCIS.
She should tell the immigration inspector that she is an adjustee.
 
OK, my first hunch was that someone (say Jane, John's wife, John's been working on a valid H-1 and a pending 485) on an H-4 with a pending 485, working on an EAD would need to use AP to re-enter.

But here are a few arguments:
1. How does the POE Officer know that Jane's been working on an EAD?
2. If John's in valid H-1 status, i.e., though he has an EAD is still working on an H-1, doesn't Jane's H-4 status remain intact even if she's working on an EAD since she's a derivative applicant?
3. If John started working on an EAD for the same employer, but still has a valid H-1, would Jane's H-4 become void?
 
You have to use AP only

nkm-oct23 is absolutely right.. Once you worked on EAD, your H1-B/H4 status is invalid. Even if you try to cheat the Immigrant officers at the port of entry by not giving/showing Advance Parole and gets OK at port of entry, later you may face problem.

Normally at the port of entry, they stamp with the valid date of Visa expiration in case of Hx candidates or the Advance Parole expiration date in case of AP candidates to specify the date till you can stay in US. If you cheat, they will stamp the Hx expiration date and the immigrant status as Hx on it. If you use AP, they specify the AP expiration date and the Alien Registration number on the stamp.

IT MAY BE A PROBLEM ONCE YOUR GC GETS APPROVED AND GO FOR STAMPING. They will ask your latest I-94 during GC stamping and if they caught this cheating, then you guys may be in a big trouble.

I suggest to use AP only..
 
vijguy

As you said, "IT MAY BE A PROBLEM ONCE YOUR GC GETS APPROVED AND GO FOR STAMPING. They will ask your latest I-94 during GC stamping and if they caught this cheating, then you guys may be in a big trouble."

Logically, even during the GC stamping time, how the BCIS office knows that she is working on EAD. When her husband status is H1, her status should be H4 and I totally agree with mavishka.

If the primary applicant H1 expires or withdrawn then there might be impact on derived H4s. Till then, I don't think there will be any issues in using H4 for re-entry.

I also feel as long as H1 is valid for the spouse, there is no difference between 'a dependent who got EAD' and 'a dependent who got EAD and working with that EAD' regarding use of H4 for re-entry.

Any one who is working on EAD and has valid H4 visa and used H4 visa/AP to re-enter can comment?

- Bob
 
here is a link

to Ron's site where he replies about switching back and forth between AP and H1

http://www.immigration-information.com/showthread.php?threadid=1974

and here is a snippet
==============================================

Thanks Ron!

I got my EAD approved!

Just curiosity: Is it possible after entering using AP, get H1 visa and change status back to H1 using I797 I currently have in case something goes wrong with AOS?


Ron's reply:

You may do this. The INS has addressed this issue specifically and they have said that you may switch back and forth between advance parole and H as many times as you want.

==============================================


ar888: Talk to your attorney about this and do update this thread. I would like to get myself educated as to how this switching works.
 
Your Wife have to Use AP Only

Though INS may or may not know that your wife has invalidated H4 status by using EAD, it is always safe to go by law. Any way what is her problem in using AP ? If you think that if she uses AP to re-enter, you too may lose H1 status, you are wrong. You will remain in H1 status if you have not used EAD so far.

You can use AP and H1/H4 alternatively, but once You use EAD to work you lose your status as H1/H4 and become adjustee.


Following link might help

http://www.hooyou.com/news/news011003h-1b.htm

This Part...
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2. EAD

For various reasons, an alien on H-1 or L-1 status may want to apply for EAD, and he/she can do so along with the I-485 application either after his/her I-140 is approved or concurrently with I-140 application. However, for purposes of approval of the I-485, those who are on the H-1 or L-1 status and whose adjustment of status applications are employer-sponsored are required to prove their intent to work for the petitioning employer, even though they can obtain the non-restrictive EAD. (INS Adjudicator's Field Manual, Chapter 23)

If an H-1 or L-1 holder decides to file for and obtain the EAD but never uses it to work, he/she is still in valid H-1 or L-1 status and able to extend the H-1 or L-1 as needed (up to the maximum allowable time on that status). The mere fact of obtaining the EAD does not affect one's status; only if the alien uses the EAD to take on another job or use EAD to work for the current employer, would he/she no longer be considered to be maintaining H-1 or L-1 status. Therefore, if an alien on H-1 or L-1 status obtains an EAD and then go to work for another employer or use it to work for his/her current employer while waiting for the completion of her/his adjustment of status application, that action would effectively terminate the H-1 or L-1 status of the beneficiary and he/she would have to file for advance parole to travel abroad and reenter into the U.S. The alien in this situation would be admitted into the U.S. as parolee and no longer be considered as on H-1 or L-1 status. (INS Adjudicator's Field Manual, Chapter 23)

On the other hand, an H-1 or L-1 holder who travels out of the United States and returns on advance parole is authorized to continue working for the petitioning H-1 or L-1 employer. He/she would not be required to obtain an EAD to work for this same employer, within the validity dates of the H-1 or L-1 petition approval. (INS Adjudicator's Field Manual, Chapter 23)

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Also this from Sheela Murthy's Chat
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Dakshina : Will the H1 and H4 get terminated if EAD Card is used?

SPEAKER_Attorney_Murthy : No, not necessarily. If a person on H1B also gets the EAD but has both valid, the H1B and the EAD are both valid. If the H4 uses the EAD, then arguably the H4 may no longer be valid.
**************************************************
 
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Thanks for the replys guys.

sbctsublc, she doesn't have any problem in using AP, I was just curious to find it out.

Any way what do they ask in that secondary instepction, if we submit AP?
 
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