How to complete H1B extension application after using AP

F

fantomX

Registered Users (C)
I will be submitting application for my H1B and wife's H4 extensions.

We last entered using our AP as we didn't have H1B visa stamped in our passport. The last H1B approved I-94 is valid until 7/2009.

Currently we have AP I-94 in our passports.

I would appreciate if someone who has been in this situation or knows the answers can reply.

My questions are:

1. What should I put for the last admission into the U.S. , H1B or the using AP?
2. Then which I-94 should be entered for the current I-94 number
3. What should be entered for the current non-immigrant status? H1B or AOS?

I need to get my H1-B extended ASAP, my I-140 has gotten an RFE (I don't know what it's about yet).

Thanks.
 
I don't think you are eligible to apply for H1 extension since you are considered in Adjustee status, not H1b after you used AP to enter US.
 
I have maintained my H1B status by not using EAD and working for the same company.

I did return the I-94 when I left the US, but it was valid until 7/2009, and I have the approval notice for H1B.

I have seen others getting extension after entering on AP.
 
fantomx,
i had a consultation with attorney on the exact same issue. I think it is possible to go back on h1b, but you may have to leave the country and come through counslar processing. If you come back on h1b, your AOS application will be considered abandoned-- but you can file your I-485 again once your PD becomes current.
also, once you enter using AP, you explicitly are on EAD (meaning you have discontinued your h1)
 
H1, AP

http://www.immigrationlinks.com/news/news301.htm
http://www.murthy.com/news/UDnewins.html

http://www.vkblaw.com/news/fivehundredtwentyfive.htm
http://shusterman.com/cronin51600.html
http://www.shusterman.com/h1memo500.html
http://www.shusterman.com/hl-99regs.html

http://www.murthy.com/chatlogs/chat0816.html
Below info was provided in chat from Muthy law office in past.
Chat User : Can one continue to work on H-1 after using advance parole to travel? Thanks.

Attorney Murthy : One may not only continue to work on the H1B, but one may also file an extension of the H1B even after having entered on the AP. The problem is that there are no USCIS regulations on the dual intent issues. We only have Legacy INS Memos on this subject from March and May 2000 with the second Memo of May 2000 superseding many sections from the earlier Memo. Generally, a person is allowed to file an H1B extension as long as s/he continues to work for the H1B sponsoring employer even if s/he previously used the EAD or entered on the AP.
 
02/27/2009: Change of H-1B Employer For H-1 Employee Working for the Employer in a Parolee Status After International Trip Using Advance Parole

AILA-CSC liaison minute of 02/25/2009 indicates that CSC will approve H-1B petition by a new employer as an extension of H-1B status if the H-1B alien traveled on an Advance Parole and has returned and resumed employment with the current employer and the H-1B status remains valid. This is a practice point of the CSC rather than a binding opinion or rule, and different Service Centers may differ in their practices. Even for the same agency,f CSC, the agency may not be liable for disagreeing with the practice point which is stated in the liaison minute. Having said that, people should understand that for this practice point to work in an individual case, one must meet the following conditions: (1) One must be in a valid H-1B; (2) After returning from the international trip on Advance Parole, one must return to and resume employment with the current H-1B employer. Inasmuch as these conditions are met, the new H-1B petition by a new employer will be approved in the form of "extension of status," and his/her H-1B status will be reinstated upon approval of the H-1B petitiion filed by the new H-1B employer.

There are a few caveats: (1) When a H-1B alien returns from international trip on advance parole, he/she is still classified as a "parolee" until the H-1B status is reinstated by the approval of H-1B "extension" petition filed either by the current employer or new employer. Accordingly, it appears the AC 21 rule of H-1B portability may not applicable, meaning that until the new H-1B petition is approved, he or she may not be able to join the new employer pending the new H-1B petition. (2) The rule of employment authorization and authorized permit of stay for 240 days pending extending petition may not be available with the new employer. Accordingly, it may be important that people use premium processing services when H-1B externsion petition is filed to reinstate the H-1B status with a new employer. When such reinstatement extension petition is filed by the same employer, he/she may be authorized to work continuously pending the petition not because of the 240-day rule but because of the USCIS presumption of employment authorization for advance parolee during the period of the approved H-1B with the same employer. These two caveats are individual opinion of this reporter and not authoritative opinion. This opinion will have to be either agreed or disagreed by the agency since there is no known authoritative opinion or rule at this point.
**copyright(www.immigration-law.com)
 
fantomX,
Did you file the H1B extension petition? Could you please update reg. your case and how did you go about some of those questions you posed earlier.

Thanks,
 
H1B Extension approved..

Thanks to everyone who helped...

Just got approval email on the H1B extension. I am still waiting for wife's H4 extension.

We had entered twice using AP.

I entered the I-94 # from the AOS in the passport, and not the H1.
Current non-immigrant status entered as H1-B (AOS).

I attached copies of all previous H1 I-94s. The original one when I entered as H1, and all the extensions approval notices.

I also sent copies of stamped AP and the I-94s from AOS.

Attached copy of receipts notice of I-140 and I-1485s.

and other documentation required for H1B.

Applied with premium processing, got approved in one day, still waiting for H4 though. Hopefully that will be extended too.

ommol: In my situation, my I-140 and H1B sponsor is the same company, and I have been working for one company only. Neither I or my wife has used EAD. After you enter on AP, you keep H1B status, if you work only for the H1B sponsor company. If you don't need the stamp in your visa, you don't have to leave the country. If you apply before expiration of the current H1B approval, you can get extension. Double check with another lawyer.

Now I have to concentrate on responding to I-140 RFE.
 
Last edited by a moderator:
Just an update....

H4 extension also got approved for my wife...

Thanks to TheRealCanadian to refer to cronin memo and others who provided information regarding this issue. It was very helpful.

Thanks.
 
You must log in or register to reply here.
Top