H1B visa expiring and travel

D

dolly75

Registered Users (C)
I have few questions related to my H1-B visa stamp on my passport and my international travel in August this year.

My H1-B visa is vaild till March,2004(next year) ,but my H1-B visa stamp on my passport is expiring in August,2003(this year).
We have plans to go to India for a short trip in Augustend .Is AP(advance parole) needed or is I-797 is good enough to reenter?

Can I maintain H-1B status after entering on AP?_ Is there any disadvantage to being a parolee in my situation?

At this point,I don' t know how long INS will take to stamp H1B visa on my passport,_ and since, we have already booked our tickets ,I don't want to take any chance by sending my passport for stamping.
Please respond.

Thankyou all
 
Originally posted by dolly75
I have few questions related to my H1-B visa stamp on my passport and my international travel in August this year.

My H1-B visa is vaild till March,2004(next year) ,but my H1-B visa stamp on my passport is expiring in August,2003(this year).
We have plans to go to India for a short trip in Augustend .Is AP(advance parole) needed or is I-797 is good enough to reenter?

Can I maintain H-1B status after entering on AP?_ Is there any disadvantage to being a parolee in my situation?

At this point,I don' t know how long INS will take to stamp H1B visa on my passport,_ and since, we have already booked our tickets ,I don't want to take any chance by sending my passport for stamping.
Please respond.

Thankyou all
Click to expand...

You need to have a valid visa stamp OR AP to re-enter. I-797 approval notice cannot be used to re-enter. If you read I-797 carefully it says clearly: THIS FORM IS NOT A VISA AND CANNOT BE USED IN PLACE OF A VISA".
You can still maintain H1 status after you return using AP and continue to work on the basis of your H1 approval (until Aug 2004). Beyond that, you should have either received GC approval, or have EAD.
You can also try to get H1 stamped at a US consulate in India.
 
Thanks a lot nkm-oct23 !! I am so glad that I can keep my H1-B status even on using the AP.
Thats really a great news for me.

Thanks once again for your very quick and prompt response.
 
I disagree with nkm-oct23

I disagree with nkm-oct23.

I think there are some debate about maintaining h1 status after using AP, It's not clear cut ruling or law I can find for against or for. but I think it's gray area, so I wouldn't take any chance.

I think if you already have H1 approval, just get visa stamp from consulte when you visit india, if you already maintain h1 visa before (not changing category) you can use drop box for visa stamping. it's easy and it doesn't take that much time (we did h1/h4 visa re- stamp in india last year while out I-485 was pending)

Please consult your lawyer.

Good luck,

JB
 
Thanks JBM for the response.I talked to my attorney about that,and he says ,it is perfectly okay to use AP to reenter and I can still maintain my H1-B status and later when I come back from my trip ,I can sent the passport for my H1b extension(which is due in March,2004),I still have three years remaining on my H1-B.

MY H1-B visa is expiring in March 2004(next year).But my H1-B visa stamp on my passport will expire this year in August.I was just wondering if I could use my AP on reentering in case my visa stamp expires by then, and just in case I don't find time to get my passport stamped while in India(well ,will try to do that).

As per my attorney ,I will still be on H1-B even after using AP ( thats what I wanted).He says on on entering on AP ,I will be a parolee and there is no disadvantage to being a parolee in my case ,since I have my H1-B visa vaild till march 2004 and after that I can always get another extension(incase I don't have my GC in hand).

Thanks again for your response.
 
This one issue has been discussed many times and probably we are doing again. I have been reading the forums for last six months and talking to my attorney I understand that once you use AP to enter back to USA, you are a parolee or AOS status. Using AP will invalidate your H1B and as a result you can not ask for an H1B extension. What you have to do is apply for new H1B approval.

Dolly75, if you already have a H1B stamp on your passport, you can easily send that to State Department in Missouri office and get it revalidated. IF your I-797 is valid till next year, they will revalidate your H1B until the expiration date. That way you can come back using your H1 and still be on H1.

We all do understand that using AP and being on H1 is a real grey area. Your attorney will say something, my attorney will say something and INS will say something. If you can keep everything straight, then you will be in a better position when any RFE generates.

After all, talk to your attorney again, make sure there are such cases happening and make a decision.
 
Again...

Yea.. this subject has been discussed till death..

Anyway, as this area is gray and not anybody has proper documentation about this (using AP nullify H1), I wont take chance.

The memo that has been released from INS on June(not sure about month), 2000 clearly mentioned that using AP nullify h1b. Lot of people say that this has been ammended, but no proof.
However, this is very true that after using AP, you can again go back to H1. But, this is pretty sure to me after lot of research " the moment you use your AP, you are payrole, you are not in H1". You can go back to H1 again by obtaining H1 visa at abroad, or reinstate your H1 inside country.


If anybody disagree with me, I will be happy to see the authentification where it says " using AP does not nullify your present H1B."

I know two of my friends went back home on AP, got married. Wife applied for H4. They were denied with a message from embassy that "primary applicant is not in H1B status" One guy was still in back home while wife applied at consulate. She was asked to show husband H1B visa stamp. She replied that husband will use AP. Consular told her that she was not eligible for H4.

So..... what you folks think???
 
Sahin,

Based on your experience can you please let me know whether the followings are possible:

1. if I am working for my original H1B petitioner employer after using AP, do you think I can use the old I-797 to go to Canada and apply for a H1B visa. (not applying for an extension)

2. As I am from a SR country, USA consulate in canada will take 3-4 weeks to do a background check on me. While they do that, can I still come back to US using AP, and then once visa is ready, I will go back, get H1B stamped on my passport and come back using the H1B.

Sounds confusing......I guess. But trying hard to keep myself on H1B rather than applying for a H1B extension (employer is not a paying a single penny for entire immigration process)

If you know such things has happened in past, please let me know.

muntasir
 
Answer

I honestly dont know what going to happen from Canada. However, this did not work for two of my friends from back home. They were asked to come back to embassy again and reapply for H1. This is kinda funny but true. Also, how do u know it takes 3-4 weeks to do background checking? It used to take way more than that. Is it improved now? I also heard Canada does not even give appointment to SR country.

I am also from the SR country and planned the same way you did. Finally gave up listening all those long waiting period for background checking. One of my friends waited for 5 months at back home. His employer was nice to him to keep the job that long.
 
Sahin,

Look at this from Murthy's website:

" An H-1 or L-1 holder who travels out of the United States, and returns on advance parole, is authorized to continue working for the H-1 or L-1 employer. He/she would not be required to obtain an EAD to work for this same employer, within the validity dates of the H-1 or L-1 petition approval".

Is that not contrary to what the normal believe is that using AP will nullify your H1B? If it does nullify H1B that you should be providing your EAD to your employer. But Murth is saying otherwise. From this, one should be able to conclude that using AP does not nullify your H1B if you are working with the same employer within you H1B validity dates. Any idea what is going on here?


Anyway to your question about applying for Visa in Canada-I have canadian residency and I am allowed to apply Visa there. I guess anyone ca, but chance of getting rejected is pretty high for SR
 
Sahin,

Look at this from Murthy's website:

" An H-1 or L-1 holder who travels out of the United States, and returns on advance parole, is authorized to continue working for the H-1 or L-1 employer. He/she would not be required to obtain an EAD to work for this same employer, within the validity dates of the H-1 or L-1 petition approval".

Is that not contrary to what the normal believe is that using AP will nullify your H1B? If it does nullify H1B that you should be providing your EAD to your employer. But Murth is saying otherwise. From this, one should be able to conclude that using AP does not nullify your H1B if you are working with the same employer within you H1B validity dates. Any idea what is going on here?


Anyway to your question about applying for Visa in Canada-I have canadian residency and I am allowed to apply Visa there. I guess anyone ca, but chance of getting rejected is pretty high for SR country citizens (I guess they want to give more trouble to SR country people, so that they leave eventually and they are getting pretty good success in doing this).

Back in your home or in any SR country, it takes 3-6 months to get the visa approval. For one of my friend's case it took 6 months. Somehow he did not loose his job. Lucky him. I guess I will not get that if I take a leave for 6 months.

So, did your friends were called to apply for H1B with the old I-797 which exists before using the AP?

muntasir
 
Hi guys

I have a question regarding use of AP. Here's the situation.. I have been on H1B (valid till 2004) visa (my H1 visa on passport expired) , currently I am waiting to recieve AP after filing AOS. My wife who has valid H4 visa on passport has left US after filling AOS, and will return after few months. My question is if I use AP after visiting Canada before the return of my wife and continue working with my existing employer. will that invalidate my wife's H4 visa and/or would she face any problem when she will return to US after few months ? or she will be ok to use H4 to enter US ?

Any experience ? I would highly appreciate any info or guidance.

thanks
 
Play Safe sawill

I always ask folks to play the safe when the immigration matter comes. Sometimes, there is no specific answer.. I would use my own brain.

Even though you are not dependent on your wife status, your wife is dependent on your status. Now the question is " Does your using AP nullify your H1B status??" People are not unanimous with the answer. Some people say "yes it does, some says "no, if you continue to work for the same company......."
I also dont know the correct answer. Sometimes rules are not the reality when it is foggy. When there is doubt in immigration benifit, you should try to avoid this.


Sawill,
You can avoid avoid using AP while coming back from Canada. Why you would use AP while you have the opportunity to use Automatic Visa Revalidation. You can enter from Canada without having having valid visa with expired visa and valid I-94 if you are not from those 7 state sponsors terrorists country.

Please, also learn the scope of Automatic Revalidation... There are more limitations..
1) You can not go out of Canada
2) you should stay less than 30 days
3) You can not apply for VISA at canada, if you do you need valid visa.

Does it help???
 
Sahin, I appreciate your reply.

I am not from those 7 states, from a SR country, yes AVR is another option, but it has also become uncertain now a days, there is no guaranty that it would work for someone, as I have seen recent cases where a person was denied entry and asked to get visa at some border post and at another border post a person was allowed to enter US on the basis of AVR (valid I94/expired visa).


thanks
 
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