Originally posted by niladri30
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Does this mean that if mygcwaiter100's wife has an H4 stamped, AND mygcwaiter100's attorney files an I-485 on her behalf and obtains a receipt notice, she could enter under this rule, even if mygcwaiter100 uses AP?
Nay. An Adjustment of Status may be filed on a person's behalf only if the said person resides in the United States.
What you have quoted is a summary of the INS memo, which we are all familiar with (to some extent) and the memo deals with "dual intent" of H-1 and H-4 visas. The summary was provided to help readers to understand that there is a way to bring a spouse in the country although primary applicant's AOS has been filed already. That is, if the primary applicant enters on H-1 instead of AP, s/he may still bring in the spouse on H-4 and will not abandon his/her pending AOS. It also emphasizes that producing a I-485 receipt at POE is one of the requirements.
My confusion continues to stem from the fact that I do not believe that mygcwaiter100 abandons his H1 status by entering on AP. Theoretically, if I-485 were later denied, he would still be in valid H1 status, if unexpired, would he not?
A valid entry document ultimately identifies the resulting status in which a person is finally admitted into the country. Showing an AP at POE, the person will be admitted as "parolee", while showing H-1* (along with AOS receipt) at POE, the person will be admitted as "H-1*".
"Parolee" does not have any other status. H-1* visa remains valid and provided that the stamp in the passport is valid as well, the person may use the said visa for re-entry at some later date, effectively re-acquiring the "H-1*" status.
Entering on AP will not terminate any "status", because the person who attempts to enter does not have any status prior to admission. It may terminate a visa, such as F-1, for example (and even F-1 seems to remain valid after that, although it is not a dual-intent visa category).
The same way, if you have filed AOS while being in H-1B status, you remain in H-1B status until you start using your EAD. At that point, your status is terminated along with the H-1B visa, and your new status is "adjustee".
As for denied AOS, being in "parolee" status and having a valid H-1B visa... well, I believe that the person in question will have to leave the country in order to re-acquire the "H-1B" status. Should the person have maintained "H-1B" status continuously, e.g. not entering on AP, but on H-1B, then this re-entry process would not be required, because the status will remain "H-1B" even after AOS denial.