Does AP cancel H1B?

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Fgsilva

Registered Users (C)
So, I have an emergency trip to my home country in January. I have a 485 pending now. I didn't apply for AP becuase I didn't antecipate the need and I also still have a valid H1B visa, although I need to renewl the stamp on my passport. Now I need to go see my parents this January (it's their 50th wedding anniversary) but I can not stay past january. At the local US consulate in my country they only have appointments for March 07! I've written them requesting an earlier appointment but I'm not sure if they'll grant it since it's not a "life and death" situation (though I'm hoping that, in the Christmas spirit they may still grant it!).

Anyway, I'm also thinking about trying for an emergency AP through infopass. now, if I do get it does it cancel my H1B right away or is it like the EAD that will only cancel my H1B if I do use it?

Any comments appreciated!
 
USCIS ISSUES FAVORABLE H-1 MEMO


The USCIS has just released a Memorandum that confirms and clarifies several unresolved issues in a favorable manner for foreign nationals. Specifically, this Memo clarified the following:



Time spent as an H-4 and/or L-2 dependent does not count against the maximum allowable periods of stay available to principals in H-1B and L-1 status. For example, a spouse in H-4 status for five years who then accepts employment and requests a change of status to H-1B will have six years of eligibility remaining rather than one year.


Foreign nationals who qualify under the AC21 do not need to be in H-1B status when requesting an additional period of stay beyond the six year minimum. Aliens who are eligible for the 7th year extension may be granted an extension of stay regardless of whether they are currently in the United States or abroad and regardless of whether they currently hold H-1B status.


An H-1 worker who has been out of the US for more than one year may elect to be admitted for the "remainder" of the six year period. This will allow individuals previously counted against the H-1B cap who have been outside the United States for one year or longer to be exempt from the quota when a new H-1B petition is filed on their behalf. Under the old rule the H-1 worker would have had to request a new six-year period of admission, which would make the worker subject to the H-1 cap. This new interpretation still allows the H-1 worker to request a new six-year period of admission so it provides flexibility.
The Memorandum is entitled "Guidance on Determining Periods of Admission for Aliens Previously in H-4 or L-2 Status; Aliens Applying for Additional Periods of Admission beyond the H-1B Six Year Maximum; and Aliens Who Have Not Exhausted the Six-Year Maximum But Who Have Been Absent from the United States for Over One Year."
 
Thanks for the reply. As it turns out I'll be able to get an appointment at the American Consulate in my home country during my stay there. So, I don't need to worry about AP anymore! :D

June1506 said:
USCIS ISSUES FAVORABLE H-1 MEMO


The USCIS has just released a Memorandum that confirms and clarifies several unresolved issues in a favorable manner for foreign nationals. Specifically, this Memo clarified the following:



Time spent as an H-4 and/or L-2 dependent does not count against the maximum allowable periods of stay available to principals in H-1B and L-1 status. For example, a spouse in H-4 status for five years who then accepts employment and requests a change of status to H-1B will have six years of eligibility remaining rather than one year.


Foreign nationals who qualify under the AC21 do not need to be in H-1B status when requesting an additional period of stay beyond the six year minimum. Aliens who are eligible for the 7th year extension may be granted an extension of stay regardless of whether they are currently in the United States or abroad and regardless of whether they currently hold H-1B status.


An H-1 worker who has been out of the US for more than one year may elect to be admitted for the "remainder" of the six year period. This will allow individuals previously counted against the H-1B cap who have been outside the United States for one year or longer to be exempt from the quota when a new H-1B petition is filed on their behalf. Under the old rule the H-1 worker would have had to request a new six-year period of admission, which would make the worker subject to the H-1 cap. This new interpretation still allows the H-1 worker to request a new six-year period of admission so it provides flexibility.
The Memorandum is entitled "Guidance on Determining Periods of Admission for Aliens Previously in H-4 or L-2 Status; Aliens Applying for Additional Periods of Admission beyond the H-1B Six Year Maximum; and Aliens Who Have Not Exhausted the Six-Year Maximum But Who Have Been Absent from the United States for Over One Year."
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Check if getting an Advance Parole is mandatory

I was told by my attorney that while I485 is pending, if you leave the country for any reason you must have Advance Parole papers; 'cos otherwise USCIS considers the I485 abandoned. This is true even if you have H1B status. I decided to play it safe and get the AP anyway.

Btw, neither AP nor EAD cancel your H1B status. Your H1B is no longer necessary (as you are considered a parolee) but it's still valid; so that if for any reason your I485 is not approved or some year your EAD renewal is delayed, you can still continue your employment on your valid H1B.

You might want to check with your lawyer to see if having an AP is necessary in your case. Don't want to scare you; just sending this note so that you do the necessary checking and don't do a wrong thing...
 
Hmmm, according to USCIS I'm on a dual state with both a valid H1B and a pending I485. The officer said that my leaving the country for tourism, etc, wont' affect my pending I485 and that I can just go ahead and apply for an H1B stamp at the consulate. In fact, a colleague left the country while his 485 was pending and nothing happened and he didn't have advanced parole; he just had to renew his H1B, same as I'm going to do.

But thanks for the info anyway. I already scheduled interview with the consulate and ticket is bought, so I'll take my chances!


anshu_ said:
I was told by my attorney that while I485 is pending, if you leave the country for any reason you must have Advance Parole papers; 'cos otherwise USCIS considers the I485 abandoned. This is true even if you have H1B status. I decided to play it safe and get the AP anyway.

Btw, neither AP nor EAD cancel your H1B status. Your H1B is no longer necessary (as you are considered a parolee) but it's still valid; so that if for any reason your I485 is not approved or some year your EAD renewal is delayed, you can still continue your employment on your valid H1B.

You might want to check with your lawyer to see if having an AP is necessary in your case. Don't want to scare you; just sending this note so that you do the necessary checking and don't do a wrong thing...
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If your GC got approved while you are out of the country and you are re entering the country using H1B visa then your GC gets annulled.
 
where does it say that?

Where did you see that??


June1506 said:
If your GC got approved while you are out of the country and you are re entering the country using H1B visa then your GC gets annulled.
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my 2 cents..

If your 485 is approved when you are out of country then you have to have Approved AP to reenter. You can't use H1 bcos you are no more non-immigrant.

If you think your visa #s are available then better get AP before leave the country.
 
jkvaisnavi said:
my 2 cents..

If your 485 is approved when you are out of country then you have to have Approved AP to reenter. You can't use H1 bcos you are no more non-immigrant.

If you think your visa #s are available then better get AP before leave the country.
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No that is not correct. You can use H1 to Re-enter. It is dual intent and allowed.
 
When the 485 is approved then the non-immigrant status is automatically invalid. Without AP one can't enter.

This is what I know. Can you post us if you have more details about using H1 reenter? it will be useful for everyone.
 
Infopass set up

Well, I set up an infopass for my local immigration office. I hope they'll be useful about settling this. At the same time I'm scheduling infopass to obtain emergency AP just in case. If they say I don't need AP with an H1 then I'll just go ahead and cancel the second appointment.
 
From AP form

That's what the AP form says:


"NOTE: If you are in the United States and wish to travelabroad, you do not need to apply for advance parole if both conditions described below in numbers 1 and 2 are met:
1. You are in one of the following nonimmigrant categories:
An H-1, temporary worker, or H-4, spouse or child ofan H-1; or
An L-1, intracompany transferee, or L-2, spouse orchild of an L-1; or

2.A Form I-485, Application to Register PermanentResidence or Adjust Status, was filed on your behalf andis pending with the USCIS.
However, upon returning to the United States, you mustpresent your valid H, L, K or V nonimmigrant visa andcontinue to remain eligible for that status."
 
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From 485 form

"Travel outside the United States for adjustment ofstatus applicants under sections 209 and 245 of theAct, and Registry applicants under section 249 of theAct.

Your departure from the United States (including brief visitsto Canada or Mexico) constitutes an abandonment of youradjustment of status application, unless you are grantedpermission to depart and you are inspected upon your returnto the United States. Such permission to travel is called''advance parole.'' To request advance parole, you must fileForm I-131, Application for Travel Document, with theappropriate fee at the USCIS office where you applied foradjustment of status.
-- EXCEPTIONS
A. H, L, V or K3/K4 nonimmigrants:
If you are an H, L,V, or K3/K4 nonimmigrant who continues to maintain his or her status, you may travel on a valid H, L, V or K3/K4 visa without obtaining advance parole."

Nowhere in both forms it says anything about losing H1B status when GC is approved. I'm still going to info pass tomorrow though!
 
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still confused!

Infopass was useless. First the person said I do need AP. Then I show her what I posted above from form I131. so she says, oh yeah, then I guess you don't need it! So, I waited 1 hour to inform the person, not the other way around! :rolleyes:
 
come on.... many people who have h1b ad who dont use ead are flying in and out every day.... with no probs at all. For example if you are a frequent traveller and doing business you need to travel very often and all the time you dont show your AP right?
 
Got through NSC

A person at NSC did confirm that, when my 485 is approved my H1B is no longer valid. If i'm out of the country during that time and try to get back on H1B they won't let me in. I'd need an AP to get back.

It all boils down to a personal decision. Do I want to risk leaving the country without an AP in case my card gets approved right when I'm out? chances are my case won't get approved within the next month. but it's always a risk... :(

Now, I understand why lawyers advice their clients to apply for AP even if they have a valid visa!

feelinglucky said:
come on.... many people who have h1b ad who dont use ead are flying in and out every day.... with no probs at all. For example if you are a frequent traveller and doing business you need to travel very often and all the time you dont show your AP right?
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This is just my thought. You can travel with your H1 visa. Just keep on checking the online status. If your GC gets approved before your return journey date, you can have one of your friend pick up your mail and send it to you by fedex and then can enter using your brand new GC. I don't know if there is any problem with that. You can check with some other expert here in this forum. If you are doing this avoid certain airport which has got US-VISIT program which records departure.
 
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Fgsilva said:
A person at NSC did confirm that, when my 485 is approved my H1B is no longer valid. If i'm out of the country during that time and try to get back on H1B they won't let me in. I'd need an AP to get back.
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No, they'll just grant you deferred inspection, or parole you in like they would if you had AP.
 
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