EAD, AP and H1-B

H

HooMan

Registered Users (C)
Hi everyone
I have a quick question for all the experts on this forum. I have a valid h1-b (expires mid 2004). I also have an EAD and AP (both expire in Jan, 2003). I have been working on my h1 and have not filled out any paperwork at my office to transfer to EAD. Last month on the way back from India, I used AP to re-enter the country (H1 was not stamped and just thought it would be convenient to use AP instead of making a trip to the Mumbai consulate). Anyways, does the use of AP for re-entry purposes automatically make my employment EAD based. Does it mean I have abandoned my H1 status ?

The reason I ask is because I had not bothered sending my EAD renewal paperwork because I am using H1 for work and did not plan on shifting to EAD atleast for the time being.

Thanks in advance for your opinions and answers
 
Yes, you are no longer on H-1B status right now - renew your EAD as soon as possible.

Best wishes,

Jigesh
 
jigesh

jigesh I think you have wrong notion about AP /EAD , AP is purely for travel purpose nothing to do with EAD/H1 , Using AP does not make H1 invalid , Had long discussion with my Lawyer about this, couple of my friends have traveled used AP to re-enter and still working on H1 ...
 
I agree with FEB140 - now here is what I found

Murthy chat says that H1 will be valid and USVISANEWS in one of their articles says it will be invalid.

Honestly I will go with Murthy - USVISANEWS have previously given incorrect and outdated info - for example the scared the s**t out of everyone sometime back saying that for concurrent filing AC21 will not be applicable - that news was not apparently correct.
 
feb140

I dont know about that. They may have H1 but they will still have an EAD. Has anyone tried getting an AP without getting an EAD?
 
patienceGC

Both of my Friends have EAD , but Still working on H1 , Both are Oct -2001 Filer , Still waiting for approval , Both applied for EAD renewal ...
 
AP without EAD renewed?

Is it possible to get AP if someone's EAD is expired and H1 is still valid? Does it make sense?

Friends, Have any idea?
 
difference between AP ,EAD and H1/H4
last week i had same question .I dont have EAD and my compnay dont apply EAD since i have valid visa.Also they dont bother if i apply for EAD and get any RFE.
But i applied for AP since i have to pay for this.

Now coming to the point, we went canada last week. I dont have visa .My lawayer said i can use the AP to enter in US. But it is nothing related with EAD. even if used the AP , i will be on VISA only.

But if u use EAD to work u cannot use ur VISA for Travelling u need AP.
 
Thanks feb140 and abhi...

It's possible that I might have inaccurate information. Here is my process of reasoning:

If one enters on H-1B, he/she gets an I-94 with H-1B status written/stamped over it at the port of entry. If one uses advance parole, the I-94 he/she gets has stamp reading "entered as parolee to pursue pending adjustment of status application." That means if one uses AP, he/she did not enter in H-1B status. And if so, in order to work, he/she must use EAD. Visa status is decided by the mode of entry stamped over I-94 (or any more recent I-94 that came with I-797 from the INS).

Again, I may be inaccurate and am thankful to those who post attorney-backed views.

Best wishes,

Jigesh

Disclaimer: Personal non-legal point of view only.
 
Jigesh

I like your reasoning and that seems correct

Here is my 2 cents - since some INS regulation on 1999/2000 you can be a parolee but you can still keep your H1. Once you file 485 your status really is pending AOS - but that does not invalidate your existing unexpired H1(I guess it used to do it in past). The person probably enjoys a double status for a while.


So bottomline - even if you use AP and enter as parolee - you still get to keep your H1 status unless you work on EAD which would automatically make your H1 void.
 
Here's a useful description which hints that I might be wrong (Sorry, HooMan): http://www.immihelp.com/gc/aos/eadap_h1.html

I hope it's most recent or at least still valid. I wonder what will happen if a person maintains H-1B but spouse uses EAD. Since spouse's is a dependent status, can he/she work on EAD if primary applicant still maintains H-1B? I don't know for sure. Questions...questions...

Best wishes,

Jigesh
 
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Thank you for your replies

Thanks everybody. I posted this question to law@murthy.com and awaiting their response. I am going to go ahead and file for EAD renewal. Btw, my wife also has a valid H4 (not stamped on her passport though). She uses EAD to work and also re-entered on AP along with me.

Also, if my EAD application for renewal is not approved before my current EAD expires, does that mean I cannot work until I get the new EAD ? Seems kind of strange when one has a valid H1 for another 18 months. Anyways.....

I will post the response from murthy. Would appreciate if someone in the meantime can find anything concrete.
Thanks again !!

Go Hoos !!
 
Hooman,

Did you get any reply from murthy.com. I am also in the same boat. Please let me know


Thanks
 
H1 is still valid after using AP.

I had this exact same question a couple of weeks ago.
As i am about to travel on AP.
I have asked my attorney and she said that using AP WILL NOT invalidate my H1. I asked her to doublecheck as my EAD is about to expire. She did and still said that the H1 is OK and i don't need to redo I-9 or anything like that to swith to EAD.
On the other hand, she said that if I do switch to EAD, then i'll not be able to travel on H1, only on AP.
 
Hooman: Do you have any update from Lawyer Murthy.. I am in the same boat...

Hooman:
Did you get any update from lawyer Murthy..
I am in the same boat..
I have valid H1 until Oct 2003. But my visa in the passport expired.. I am planning to re-enter using AP...
So I am wondering whether I will be on H1 or EAD once after using AP for travel..

I am planning to ask this Question Lawyer Rajiv Khanna..
That may take couple of days to get the response from him..
If you get any update please let us know..

Thanks
 
Still waiting for answer from Murthy

Will update on this thread as soon as I hear something. You guys do the same.

Thanks

Go Hoos !!
 
I'm not a lawyer, but Jigesh's arguments hold water, in that, if a person uses his/her AP to enter it indicates an intention to abandon their non-immigrant status (H1) and enter the country as a parolee. What logically follows is that the person should then use his/her EAD to continue working.

However, it's possible that INS has deliberately tried to keep the work part and the entry part separate so that people entering on an AP could still work on their valid H1s,
OR,
there's no such INS law and people are simply taking advantage of the loophole.
 
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