Help please. Complex case.

H

h1bdesi4gc

New Member
Gurus and experienced members,


I would highly appreciate if you can give me your suggestions on my situation.
Hope I am posting this request for help in the right forum.

Here is my background:

I entered US on H1B in early 2000. At POE one "not so courteous" INS officer "cancelled" my H1B visa for FRAUD, ONLY because he could not find my small employer in the INS database. He scheduled me for deportation and kept me kept in the INS office overnight. Next day morning my company contacted INS (thankfully there was a good officer on duty by then), issues were resolved, I was scheduled for deferred inspection, walked out with an apology from the INS officer on duty.

Then later in 2000 my company applied for revalidation in US based erroneous cancellation grounds and on the suggestion of the INS office at deferred inspection, which was rejected under 221G, asking to get stamping abroad. Since then I have changed two companies. I have letters from this old company detailing the facts from 2000 at POE. I have ALWAYS been in valid status and currently working in one of the Fortune 100 companies.

Now I have a new Indian passport and planning to get my stamping from Canada. By education, I am a BE in Comp from India, 9 years total and 4.5 years experience in US. Also, I have my AP (derivative beneficiary) approved and spouse’s 140 pending at VSC. I have asked some extra questions just to avoid multiple postings later. Thanks for your help.

1. How risky is my case to go for stamping in Canada?
2. If my visa gets rejected, can I use my AP (and retain H1B) to enter US? or will I be forced to go to India?
3. If the visa is rejected in Canada and then in India can I use my AP to leave India, come to US and continue to work on H1B?
4. How should I answer these two questions on the visa form?
31. Have You Ever Been Refused a U.S. Visa?
35. Has Your U.S. Visa Ever Been Cancelled or Revoked? (Was my visa actually "cancelled"? It was a mistake)
5. I have a pending Canadian PR app, which should be approved in a couple of months max. Does having a PR have any advantages when it comes to H1B stamping? If I have a PR can they still ask me to go to India or Canada itself becomes my home country once I land there?
6. If my spouse’s 140 (and thus 485) is rejected, then can I use my AP when an140 appeal or MTR is pending?

Thanks a lot.
 
Last edited by a moderator:
1. How risky is my case to go for stamping in Canada?
Answer : Your case is not a complex one. You don't need a H1b stamp on your passport to live in USA. So the cancelled stamp in your passport does not affect your case because it was their mistake and you were allowed to enter.

2. If my visa gets rejected, can I use my AP (and retain H1B) to enter US? or will I be forced to go to India?
Answer : No. If your H1b is rejected, you can't enter this country . Having an AP does not mean anything if you don't have the underlying H1B or EAD. Even if you have an EAD, the cancellation of H1b due to fraud or any out of status legal issues, will make your case ineligible to use EAD. In a nut shell, if you go for H1b stamping and it is rejected, then you have no chance of entering USA legally. But i don't think that your H1B will be rejected :)

3. If the visa is rejected in Canada and then in India can I use my AP to leave India, come to US and continue to work on H1B?
Answer : This questions is almost same as above.

4. How should I answer these two questions on the visa form?
31. Have You Ever Been Refused a U.S. Visa?
35. Has Your U.S. Visa Ever Been Cancelled or Revoked? (Was my visa actually "cancelled"? It was a mistake)
Answer : 31 ..NO (you are not rejected a Visa)
35.. YES (and mention the reason)

5. I have a pending Canadian PR app, which should be approved in a couple of months max. Does having a PR have any advantages when it comes to H1B stamping? If I have a PR can they still ask me to go to India or Canada itself becomes my home country once I land there?
Answer: I am not sure if having a canadian PR helps in getting the H1b approval, but it might be a better idea to go for stamping after getting the canadian PR.

6. If my spouse’s 140 (and thus 485) is rejected, then can I use my AP when an140 appeal or MTR is pending?
Ans : AP is only a travel permit for people maintaining a valid status. It does not give you any other benefit other than allowing you to leave the country. So please forget about AP . If your 140/485 is rejected , but your H1b is valid, then you can remain in the country, provided INS did not give you a deportation notice due to fraud.

Finally, i would suggest that you better never go for H1b stamping . Wait till you get EAD and then switch from H1b to EAD and then use AP for travel to india.
I may not be able to answer any more questions. So please don't count on me. When you ask 10 questions at one time, usually nobody answers. It is always better to ask one question at a time.
 
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