Final Confirmation -:About Using AP and H1/H4 Status.
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Pareshan4GC
Looks like previous post was ambiguous. Anyway, I agree to the following:
1) Obtaining EAD won't invalidate H/L status. (Section a, b in the link)
2) Using AP won't invalidate H/L. (section c, d, e, f in the link)
3) Using EAD will invalidate H/L. (Section a, b in the link)
Kindly read again the following link:
http://boards.immigrationportal.com/showthread.php?s=&threadid=119229
Looks like previous post was ambiguous. Anyway, I agree to the following:
1) Obtaining EAD won't invalidate H/L status. (Section a, b in the link)
2) Using AP won't invalidate H/L. (section c, d, e, f in the link)
3) Using EAD will invalidate H/L. (Section a, b in the link)
Kindly read again the following link:
http://boards.immigrationportal.com/showthread.php?s=&threadid=119229
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Pareshan4GC
Registered Users (C)
Entering on AP
Friends,
When you enter on AP, what is your status in U.S? What is your stamp on the passport?
I have never entered on AP hence I dont know.
I think entering on AP means, if you going to work then you will work on EAD.
If an H4 person enters the country on AP ... can he start working right away without informing the INS that he is going to work on EAD or does he have to inform the INS (I think the form # is I-9, am I right?)?
Friends,
When you enter on AP, what is your status in U.S? What is your stamp on the passport?
I have never entered on AP hence I dont know.
I think entering on AP means, if you going to work then you will work on EAD.
If an H4 person enters the country on AP ... can he start working right away without informing the INS that he is going to work on EAD or does he have to inform the INS (I think the form # is I-9, am I right?)?
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Jharkhandi
Registered Users (C)
Entering on AP doesn't invalidates your H or L visa as these are dual intent visa. It is not an open question. Lots of people have done it in past. LC_Viriginia is one good example. Contact 140takes4ever - he has also done it.Pareshan4GC said:
Posting from the thread mentioned by LC_Virginia:
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Revised INS Memo on Dual Intent When Adjustment Application Pending
Below is the amended version of the May 16, 2000 INS memo that supersedes and reverses the March 14, 2000 Bach Memo. The memo states that Hs and Ls who have returned to the U.S. under advance parole would be considered to have worked with authorization under H or L status.
U.S. Department of Justice
Immigration and Naturalization Service
425 I Street NW
Washington, DC 20536
HQADJ 70/ 2.8.6, 2.8.12, 10.18
AD 00-03
AMENDED VERSION
MEMORANDUM FOR
REGIONAL DIRECTORS
SERVICE CENTER DIRECTORS
DISTRICT DIRECTORS
OFFICERS IN CHARGE
ASYLUM DIRECTORS
PORT DIRECTORS
FROM:
MICHAEL D. CRONIN
ACTING ASSOCIATE COMMISSIONER
OFFICE OF PROGRAMS
SUBJECT: AFM Update: Revision of March 14, 2000 Dual Intent Memorandum
This memorandum supersedes and amends the March 14, 2000 memorandum on dual intent for H-1 and L-1 non-immigrants with pending applications for adjustment of status, which changes the Adjudicator's Field Manual, Chapter 23.
Please note that the Service intends to address these issues definitively when the Service finalizes the interim rule published on June 1, 1999, at 64 Fed. Reg. 29,208 (1999). When the final rule enters into force, the final rule, not this memorandum, will be controlling.
1. In Chapter 23 of the Adjudicator's Field Manual, the questions and answers added at APPENDIX 23-4, entitled FREQUENTLY ASKED QUESTIONS ABOUT TRAVEL OUTSIDE THE UNITED STATES BY AN H-I OR L-1 NONIMMIGRANT WHO HAS APPLIED FOR ADJUSTMENT OF STATUS: by the March 14, 2000 memorandum, are removed and replaced with the questions and answers below:
1. If an H-1 or L-1 nonimmigrant has filed for adjustment of status under an employment-based preference category that requires an offer of employment in the United States, does the interim rule affect the applicant's responsibility to establish his/her intent to work for the petitioning entity?
No. If an H-1 or L-1 has filed for adjustment of status under an employment-based preference category that requires an offer of employment in the United States, the applicant still has the responsibility of establishing his/her intent to work for the petitioning entity after becoming a permanent resident. Neither the rule nor the guidance has modified this requirement or the corresponding requirement that the employer establish his/her intent to employ the applicant.
In the interim rule and initial guidance, the term "open-market employment" was used to mean unrestricted access to employment. Applicants with pending applications for adjustment of status are eligible to apply for an employment authorization document (EAD). With an EAD, an alien has access to unrestricted employment, the "open *market". However, if the applicant is adjusting status under an employment-based preference category that requires an offer of employment in the United States, the fact that an applicant is able to work in the open-market does not alter the applicant's responsibility to demonstrate an intent to work for the petitioning employer.
2. If an H-1 or L-1 nonimmigrant or H-4 or L-2 dependent family member obtains an EAD based on their application for adjustment of status but does not use it to obtain employment, is the alien still maintaining his/her nonimmigrant status?
Yes. The fact that an H or L nonimmigrant is granted an EAD does not cause the alien to violate his/her nonimmigrant status. There may be legitimate reasons for an H or L nonimmigrant to apply for an EAD on the basis of a pending application for adjustment of status. However, an H-I or L-1 nonimmigrant will violate his/her nonimmigrant status if s/he uses the EAD to leave the employer listed on the approved 1-129 petition and engage in employment for a separate employer.
3. If an H-1 or L-1 nonimmigrant has traveled abroad and was paroled into the United States via advance parole, the alien is accordingly in parole status. Does this interim rule allow him or her to now apply for an extension of nonimmigrant status?
Until the final rule is published, an alien who was an H-1 or L-1 nonimmigrant, but who was paroled pursuant to a grant of advance parole, may apply for an extension of H-1 or L-1 status, if there is a valid and approved petition. If the Service approves the alien's application for an extension of nonimmigrant status, the decision granting such an extension will have the effect of terminating the grant of parole and admitting the alien in the relevant nonimmigrant classification.
4. If an H-1 or L-1 nonimmigrant has traveled abroad and reentered the United States via advance parole, the alien is accordingly in parole status. How does the interim rule affect that alien's employment authorization?
A Service memorandum dated August 5, 1997, stated that an "adjustment applicant's otherwise valid and un-expired nonimmigrant employment authorization... is not terminated by his or her temporary departure from the United States, if prior to such departure the applicant obtained advance parole in accordance with 8 CFR 245.2(a)(4)(ii)." The Service intends to clarify this issue in the final rule. Until then, if the alien's H-1 or L-1 employment authorization would not have expired, had the alien not left and returned under advance parole, the Service will not consider a paroled adjustment applicant's failure to obtain a separate employment authorization document to mean that the paroled adjustment applicant engaged in unauthorized employment by working for the H- 1 or L-1 employer between the date of his or her parole and the date to be specified in the final rule.
5. Should an alien returning to the United States from travel abroad who has a valid 1-512 and a valid H-1 or L-1 nonimmigrant visa be paroled in or readmitted in H-1 or L-1 status?
If an alien has a valid H-1or L-1 nonimmigrant visa and is eligible for H-1 or L- 1 nonimmigrant status and also has a valid Form I-512, he or she may be readmitted into H-1 or L-1 status or be paroled into the United States. It is the alien's prerogative to present either document at inspection. However, if an alien presents both a valid H-1 or L-1 nonimmigrant visa and a valid Form I-512, and the alien is eligible for the H-1 or L-1 nonimmigrant classification, the Service should inform the alien that H-1 and L-1 non-immigrants no longer need to use advance parole to preserve pending applications for adjustment of status and should admit the alien in H-1 or L-1 nonimmigrant status. The fact that an alien has applied for advance parole and received Form I-512 does not compel him or her to use the advance parole.
If the alien is not admissible as an H- I or L-I nonimmigrant, then he or she cannot be readmitted as an H- I or L-I nonimmigrant. Instead, such an alien may be paroled into the United States.
6. Is an alien who has a multiple entry I-512 and who has previously been paroled into the United States now eligible for admission as an H-1 or L-1 if he or she is still in possession of a valid H-1 or L-1 visa?
Yes, the alien may be admitted as an H-1 or L-1. However, aliens returning from abroad may only be admitted as an H-1 or L-1 when they have a valid H-1 or L-1 visa (unless visa exempt), remain eligible for H-1 or L-1 classification, and, where there has been a recent change of employer or extension of stay, have evidence of an approved I-129 petition in the form of a Notice of Action, Form I-797, indicating approval or a notation on the nonimmigrant visa indicating the petition number and the employer's name. If they do not meet these criteria, then they use their I-512.
11. In Chapter 15.4 of the Inspector's Field Manual, the Special Note A for nonimmigrant classification H-1 B should be revised to read as follows:
(A) Foreign residence requirement. H-1 B does not have to establish he or she has a foreign residence. For information pertaining to dual intent, see AFM Appendix, 23-4.
111. In Chapter 15.4 of the Inspector's Field Manual, add Special Note E for nonimmigrant classification L-1 to read as follows:
(B) Dual intent. For discussion of applicability of dual intent, see AFM Appendix 23-4.
Field Inquiries
All operational regional program units should familiarize themselves with this memorandum and related procedures in order to be responsive to any inquiry from the field. Questions regarding this memorandum may be directed, through appropriate supervisory channels to HQADN. For issues concerning H or L status, contact John Brown or Irene Hoffman, respectively, at 202-353-8177. For issues concerning advance parole, contact Michael Valverde at 202-514-4754.
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I think usnycus has pointed to useful stuff (if you read it in context and right mindset). Hope you will get the point across.
Jharkhandi
Registered Users (C)
What is AP?Pareshan4GC said:
It is a travel document.
What is EAD?
It is authorization to work in USA, it is your registration card valid for all law-enforcing departments.
How are they related?
yygov said:
FDBL rep told me that enetring on AP will NOT invalidate my h1B status. This was 2 weeks ago.
I agree with the general tone of this discussion that using AP to enter the country while continuing to work on an H1B does not invalidate the H1 status or affect the ability to reapply for H1 extensions.
Bodhal Singh
Registered Users (C)
Jharkhandi said:
That's my understanding too. EAD and AP are not at all related. Both are used for different different purposes. Using one of them does not invalidate another one.
Jharkhandi
Registered Users (C)
Pareshan4GC said:
Please check following if you still think it is open question for debate and it good only for discussion sake:
http://www.vkblaw.com/news/fivehundredtwentyfive.htm
http://www.shusterman.com/hl-99regs.html
http://www.immigrationlinks.com/news/news301.htm
http://shusterman.com/cronin51600.html
P.S. Now you must be knowing what to do with your lawyer!
Jharkhandi
Registered Users (C)
Pareshan4GC said:
Your status in USA is of parolee. But this doesn't invalidates your L/H visa. You can still continue on H/L status.
If entering on AP was directly linked to EAD then why should there be two documents?
Beware this doesn't applies to any other visa. If you enter on any other visa then your 485 application is considered abandoned.
Not nessecarily. Why would there be two documents then - one for AP and other for EAD?yygov said:
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refer to this internal memo of May 2000. Before this it was not allowed to extend the staus once enter using parole. I have put up both memo. I do not any change occured after this.
Old Memo:
http://www.vkblaw.com/news/fivehundredfortyoneb.htm
Newmemo:
http://www.vkblaw.com/news/fivehundredtwentyfive.htm
Old Memo:
http://www.vkblaw.com/news/fivehundredfortyoneb.htm
Newmemo:
http://www.vkblaw.com/news/fivehundredtwentyfive.htm
Jharkhandi
Registered Users (C)
Use H1b I-94 date, whatever it is. Send copy of both I-94 when you apply for extension. While travelling overseas - staple them together before handing it over.GC-App said:
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Con_File_Feb
Registered Users (C)
Thank you Jharkhandi,
These links completely explain, and before posting this post I was 80% sure that, but now 100% sure that, by using AP, it will not invalidate your H1/H4 status.
soon I will apply for our H1/H4 extension, in spite of entering through AP. and will let you know the results.
Pareshan4GC, I think you strongly believe your lawyer, and do not want to change you opinion but this is true statement.
For all other's
“Using your AP, will not invalidate your H1/H4 Status, It’s by using EAD your H1/H4 status gets invalidated.”
If this agreed we can move this conclusion to “VSC for Dummies.” Thread created by Jharkhandi.
These links completely explain, and before posting this post I was 80% sure that, but now 100% sure that, by using AP, it will not invalidate your H1/H4 status.
soon I will apply for our H1/H4 extension, in spite of entering through AP. and will let you know the results.
Pareshan4GC, I think you strongly believe your lawyer, and do not want to change you opinion but this is true statement.
For all other's
“Using your AP, will not invalidate your H1/H4 Status, It’s by using EAD your H1/H4 status gets invalidated.”
If this agreed we can move this conclusion to “VSC for Dummies.” Thread created by Jharkhandi.
Jharkhandi said:Please check following if you still think it is open question for debate and it good only for discussion sake:
http://www.vkblaw.com/news/fivehundredtwentyfive.htm
http://www.shusterman.com/hl-99regs.html
http://www.immigrationlinks.com/news/news301.htm
http://shusterman.com/cronin51600.html
P.S. Now you must be knowing what to do with your lawyer!
Jharkhandi
Registered Users (C)
Done.
Pareshan4GC
Registered Users (C)
I am hearing a lot of people saying that they entered on AP and their status is H1b. I guess, I am wrong then.
I tell you, USA immigration is really not as simple as 2 + 2 = 4. My attorney clearly states that after you use AP or EAD, you are no longer in H1/H4 status (you are technically in AOS). And if the I485 gets rejected you have to go outside the country and come back in. But people on this forum have other things to say.
I tell you, USA immigration is really not as simple as 2 + 2 = 4. My attorney clearly states that after you use AP or EAD, you are no longer in H1/H4 status (you are technically in AOS). And if the I485 gets rejected you have to go outside the country and come back in. But people on this forum have other things to say.
Jharkhandi
Registered Users (C)
Do not misquote your lawyer. Hard to belv it.Pareshan4GC said:
Pareshan4GC
Registered Users (C)
Jharkhandi said:
J,
This communication took place via email. I have replaced the company name(s).
If the I140 or I485 (applied by COMPANY_B) gets rejected...
Q: Does she have to go to India for H4 stamping or can she just revert back to H4 status without going outside the country?
A: The mere fact that she files the I-485, I-131 and I-765 does not in any way impact her claim on H4 status, nor does the approval of the I-131 or I-765. It is the use of the advance parole from the I-131 approval or the EAD from the I-765 approval that automatically moves her from H4 status to pending I-485 status. If she used either of those documents and then her I-485 is later denied, then she would lose the I-485 claim to remain here and the advance parole and EAD would be terminated too. Assuming that you continued to maintain H1B status, she could herself regain H4 status. You should assume that she would depart the US, apply for the H4 at a consulate, and then return after it is granted. This could be done back home, but probably could also be done in Mexico or Canada.
Q: If she has to go to India, can the U.S consulate refuse to grant her H4 visa because her 6 yrs of H4 are already over? Can the consulate ask her to stay away from the U.S for a year before granting her H4 visa?
A: Note: if you continue to enjoy H1B status in annual extensions beyond the 6th year; otherwise yes.
Q: What if she is working on EAD (and she doesn’t have a valid H4 status anymore) and the I140 gets rejected. What happens then?
E.g. the extension COMPANY_A recently applied is good for a year. Assuming it gets over on June-30-2005. Sometime before then, COMPANY_A will again apply for my (and my daughters) H visa extension. Should we also apply for my wife’s H4 visa extension though she is working on EAD? If not then she will not have a backup H4 and under those circumstances what happens if the I140/I485 gets rejected?
A: See above. Note that she does not need an H4 extension to apply for the H4 abroad. What she needs is your H1B to remain valid. Therefore, your H1B is effectively her backup route to the H4. BTW, technically it is the I-485 denial that impacts her, not the I-140.
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Jharkhandi
Registered Users (C)
I would say - decide about your lawyer seriously.Pareshan4GC said: