H1-B and AP confusion

Q

qww

New Member
I am on H1-B now and am planning travel next year. I have been trying to get answers whether I need to apply for AP or not since I am on H1-B with I-485 pending. My lawyer says that if I apply for AP my H1-B will be terminated, and I think he is wrong.

I also read from other forum that if I have a stamped H1-B visa(Which I do not have), I do not need to apply for AP.

However, in the AP application (I-131) Instruction-first page, it says:
If you are in the US and wish to travel abroad, you do not need to apply for AP if both conditions described below in numbers 1 and 2 are met:
1. You are in one of the following nonimmigrant categories:
a. An H-1, temprory worker, or H-4, spouse or child of an H-1; Or
2. A form I-485, Application to Register Permanent Residence or Adjust Status, was filed on your behalf and is pending with the CIS.



So, do I need to apply for AP or not, with valid H1-B status but no stamp on my passport?
 
If you have a valid H1B and you are using it to work then you dont need to apply for AP as you could use it to travel.

I think just by applying for AP your H1 does not get invalidated. If you use AP at POE then your H1 might be terminated as your status will change to parolee.
 
So basically, As far as I have a valid H1-B and am working use it, I do not need AP to travel, correct? Even I don't have it stamped on my passport. Do I need to apply a new visa at US embassy?

I remember last year my wife went travel, she applied a new H1-B visa at US embassy.
 
Originally posted by qww
I am on H1-B now and am planning travel next year. I have been trying to get answers whether I need to apply for AP or not since I am on H1-B with I-485 pending. My lawyer says that if I apply for AP my H1-B will be terminated, and I think he is wrong.
------ your lawyer is 200% wrong. if you have H1 visa or working on H1 status and AOS filed you can get AP, EAD (it is up to use EAD or AP) applying for AP does NOT terminate your H1 status.
if you have USED or using EAD then you are NOT on H1 status. having EAD or AP does NOT invalidate your H1 status. let your lawyer read the law/regulation that was change long back :
http://www.shusterman.com/h1memo500.html
http://www.shusterman.com/hl-99regs.html
http://shusterman.com/cronin51600.html
------- one can also be on H1 if enter on AP read:
http://www.immigrationlinks.com/news/news301.htm
http://www.murthy.com/UDnewins.html
http://www.vkblaw.com/news/fivehundredtwentyfive.htm
I also read from other forum that if I have a stamped H1-B visa(Which I do not have), I do not need to apply for AP.
------ if you have H1 Visa stamped in passport then you can enter with H1B stamp or can get H1B stamp from DOS in US or can get H1 Visa stamp from consulate when you go out ( remember that in India Bombay and Chennai consulates are creating problems in H1 or H4 visa stamps) best option apply AP and get AP approved in hand before departing from US so that you can enter with AP if any problem with H1 stamp.
However, in the AP application (I-131) Instruction-first page, it says:
If you are in the US and wish to travel abroad, you do not need to apply for AP if both conditions described below in numbers 1 and 2 are met:
1. You are in one of the following nonimmigrant categories:
a. An H-1, temprory worker, or H-4, spouse or child of an H-1; Or
2. A form I-485, Application to Register Permanent Residence or Adjust Status, was filed on your behalf and is pending with the CIS.
-------- if you have H1B Visa stamp you dont need AP but you dont have H1B valid Visa stamp on passport better apply for AP while in US and you need AP approved in US
read what USCIS says for AP this is recent:
http://uscis.gov/graphics/publicaffairs/newsrels/TravAdvisory3_24_04.pdf


So, do I need to apply for AP or not, with valid H1-B status but no stamp on my passport?
----- you need to have AP to enter US if you dont have H1B or H4 stamped on your passport, remember it takes 5-6 months to get approved AP in hand from the date you file. You can file your AP directly no need of lawyer
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