H1B or AP to enter back into country

M

msdms

Registered Users (C)
Here is my case

- 6 year stamping of H1B on passport expiring on June 6th 2004
- Using EAD card for work purpose (filled out I-9 with employer )
- Have approved AP valid until Jan 2005
- Have APPROVED I140 (Basically waiting on I-485)

I have to travel to India Mar 20th and return on June 2nd 2004

1. Should I use AP or H1B o re-enter the country (Since technically I still have 4 more days left on H1B) ?
2. Would the immigration officer give me a hard time if I use H1B (Since only 4 more days left on H1B)
3. Will using my AP trigger any other thing with BCIS ?

Any suggestion is much appreciated.
 
1. Should I use AP or H1B o re-enter the country (Since technically I still have 4 more days left on H1B) ?
Ans: Since you're currently working on an EAD you should use AP.

2. Would the immigration officer give me a hard time if I use H1B (Since only 4 more days left on H1B)
Ans: Don't use your H1 since you're not working on it. They might let you enter but technically you should be using AP.

3. Will using my AP trigger any other thing with BCIS ?
Ans: No.
 
1. Should I use AP or H1B o re-enter the country (Since technically I still have 4 more days left on H1B) ?
-- You don't have an option. Since you've used EAD, you've got to enter on AP

2. Would the immigration officer give me a hard time if I use H1B (Since only 4 more days left on H1B)
-- Yes he would if you use H1B

3. Will using my AP trigger any other thing with BCIS ?
-- Not that I've heard of.
 
can I enter using AP and still maintain H1 status(if I've not used EAD) ?
P.S: I don't have a valid H1 stamp but have the H1 approval notice.
 
I am in similar situation. Working on H1B. Stamp of passport - expired H4. Have EAD and approved AP. I need to travel to india . IF I use AP will my H1B be still valid when i return? if yes, can someone point me to relevant memo/law anything? Appreciate your help.
 
vascan said:
can I enter using AP and still maintain H1 status(if I've not used EAD) ?
P.S: I don't have a valid H1 stamp but have the H1 approval notice.
Click to expand...

It's simple, if you're working on H1 then use H1 to re-enter. If you're working on an EAD then use AP.

Using AP while you're working on H1 will imply that you want to abandon your non-immigrant status (H1) and you will then need to use your EAD.

Bottom line is that if you have a valid H1 use that first. Even if you need to go for stamping at the Consulate do that.
 
Last edited by a moderator:
Not so simple

"It's simple, if you're working on H1 then use H1 to re-enter. If you're working on an EAD then use AP.

Using AP while you're working on H1 will imply that you want to abandon your non-immigrant status (H1) and you will then need to use your EAD."

This is not correct. From INS memo (source provided above):

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 unexpired 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.

"Bottom line is that if you have a valid H1 use that first. Even if you need to go for stamping at the Consulate do that."

Good idea to get a stamp, but you can enter on AP without affecting dual intent status.
 
Man, that language is so complicated, as it typically is to confuse the hell out of everyone so that they can apply rules as they please. From what I gather it just says that even if the H1 person returns using AP and doesn't obtain EAD his employment will not be considered unauthorized. This might be fine on paper but how do immigration officers really interpret and apply this is the key thing. So just to be on the safe side try and match your means of entry to your stay permit, i.e., H1-H1, EAD-AP. That's all.
 
mavishka said:
Man, that language is so complicated, as it typically is to confuse the hell out of everyone so that they can apply rules as they please. From what I gather it just says that even if the H1 person returns using AP and doesn't obtain EAD his employment will not be considered unauthorized. This might be fine on paper but how do immigration officers really interpret and apply this is the key thing. So just to be on the safe side try and match your means of entry to your stay permit, i.e., H1-H1, EAD-AP. That's all.
Click to expand...

I agree that the language is complicated. I also agree that it is better to be safe and use the valid H1 for entry if an EAD has not been used for employment. However, the memo does make it clear that use of the AP does not invalidate continuing H-1 employment authorization, H-1 visa extension, or future re-entry using a valid H-1 stamp.

The issue becomes more complicated when visa stamp revalidation needs to be done yearly (after six years on H-1), takes many months to get done in the US, is expensive due to reciprocal arrangements with other countries, and may result in lengthy delays for background checks abroad.
 
Gee, the more you know, the more you are worried. this is my experience. I am currently working under H1B. Last year, I re-entered States using AP (although I could have used H1B at that time, but I thought I AP was the best option if I am in I485 pending status). Anyway, so far it seems that it hasn't trigged any bad things, my H1B was just renewed. So I tend to believe the using AP should not damage your current H1B status. I asked my lawyer, she seems to agree. But how it is applied is completely denpendent on the field officer, who are not definitely aware of all these memo.
 
mavishka,
It is complicated , but it is not confusing.
Just because you did not get it right does not mean that it confuses everyone.


mavishka said:
Man, that language is so complicated, as it typically is to confuse the hell out of everyone so that they can apply rules as they please. From what I gather it just says that even if the H1 person returns using AP and doesn't obtain EAD his employment will not be considered unauthorized. This might be fine on paper but how do immigration officers really interpret and apply this is the key thing. So just to be on the safe side try and match your means of entry to your stay permit, i.e., H1-H1, EAD-AP. That's all.
Click to expand...
 
vascan said:
mavishka,
It is complicated , but it is not confusing.
Just because you did not get it right does not mean that it confuses everyone.

Thanks bslater for clarifying and thanks gc4201 for mentioning your experience.
Click to expand...
 
I was talking to my attorney and they said

- If you are using EAD, BCIS does not know that. This is because the I-9 you update with the HR is not sent to any govt. agency (including BCIS)

- So technically you can use the H1 to re-enter even if it has 4 days left before expiry (given all my other conditions listed at the top of the thread stays true)



Any comments on this.
Thanks for all the inputs and suggestions.
 
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