In an interesting situation - please advise.....

A

abhi999

Registered Users (C)
I applied for my EAD/AP (first time) at VSC with the ND 09/27/2003.

Since I was told my documents would take about 3-4 months to process then, I went ahead and planned my trip to India in April (for my wedding) in January. Also, my six years on my H1-B were going to expire right in the middle of my trip so I could not make the trip just on my existing H1-B visa.

After waiting till the end of Feb and having not received the EAD/AP documents, we decided to file for my 7th year H1-B extension (based on an approved labor and pending I-140) using premium processing. My H1-B extension application has been approved and I am planning to get my visa stamped while I am in India. I leave for India in two days.

I just checked my EAD/AP status online and it seems they both have been approved within the last two days (April 6 and April 7). I agree it is definitely a good thing that my applications have finally been approved after about 6 1/2 months.

Should this change my plans? Can I still leave for India as planned, get my H1-B stamped and come back on the same? The reason I ask is because I do not think I will have my EAD/AP documents with me when I leave.

I have asked my lawyers too - but this may be a last minute issue and I hope I do not have to change my travel plans because of this (wait till I have my EAD/AP documents and then leave the country).

Can anybody here shed any more light on this? Any suggestions would be greatly appreciated.

Thanks in advance.
 
You should be fine with just your H1 extension. Get that stamped and you are good to go. AP is generally used to enter the country only if you are working on EAD and are not maintaining H status.

To be on the safer side, you can ask a friend to check your mail here in US while you are gone, and overnight the APs and EADs to you in India as soon as they receive it.

goodluck!

-ab
 
Originally posted by atlantabhopali
You should be fine with just your H1 extension. Get that stamped and you are good to go. AP is generally used to enter the country only if you are working on EAD and are not maintaining H status.

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This is not true. You can use AP if you have a valid H1 but do not have a valid visa stamp in the passport. Using the AP does not change your H1 status in such a case. You will still be on H1. So the assumption that EAD should he used in conjunction with AP is not true in all cases.

 
?

??
Is this true?

From what I know, when you use AP you lose your non-immigrant visa (in his case, the H1). I am planning on leaving and entering the country again for Christmas and when I use AP, I was told by my lawyer that , my H-4 won't be valid anymore.

From what I understand, you can have EAD and AP, but if you still have an H-1 valid, you can use it until the last day of it. You don't NEED to use EAD and AP, but if you DO something that is immigrant instead of "H1" (working at another job, opening a business, entering as a Advanced Parole) than you will be considered a Parolee with 485 pending, and not H1 anymore.

Please, consult a lawyer or something to be sure about that.

Luciana
 
Re: ?

Originally posted by Calinca
??
Is this true?

From what I know, when you use AP you lose your non-immigrant visa (in his case, the H1). I am planning on leaving and entering the country again for Christmas and when I use AP, I was told by my lawyer that , my H-4 won't be valid anymore.

From what I understand, you can have EAD and AP, but if you still have an H-1 valid, you can use it until the last day of it. You don't NEED to use EAD and AP, but if you DO something that is immigrant instead of "H1" (working at another job, opening a business, entering as a Advanced Parole) than you will be considered a Parolee with 485 pending, and not H1 anymore.

Please, consult a lawyer or something to be sure about that.

Luciana
Click to expand...

Here is a simple rule. If a person (H1 or H4) uses EAD then they lose the "H" status immediately. On the contrary, if EAD is not used, then utilizing AP (as long as the H1 or H4 validity holds good) does NOT invalidate the "H" status. I have got confirmation from my lawyers and also used AP to get into the country in Jan 2004. My H1 was valid well until the end of 2004. But my visa was expired. So I used AP to gain entry.

Nevertheless, the responsibility lies with the person to cross-check with a lawyer before blindly taking the advice presented on this forum. BTW, I am still on H1 status even after using my AP.
 
so in other words, if one has approval notice of H1B (I797) in hand and no H1 visa stamp on the passport then one can use AP to enter the country and still be on H1B?
 
Originally posted by betsy
so in other words, if one has approval notice of H1B (I797) in hand and no H1 visa stamp on the passport then one can use AP to enter the country and still be on H1B?
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IMHO what you inferred is correct only if your I797 is valid (could be months or years in the future).
 
but when you enter using AP you get an I94 that is valid for as long as the AP and your status changes to that of a "parolee". So according to you a parolee can work in H1B status based solely on approval notice on H1B (valid till 2006) and without having a H1B visa stamped on the passport? that would be nice..one can save the time and money involved in getting the H1B stamped.
 
Originally posted by betsy
but when you enter using AP you get an I94 that is valid for as long as the AP and your status changes to that of a "parolee". So according to you a parolee can work in H1B status based solely on approval notice on H1B (valid till 2006) and without having a H1B visa stamped on the passport? that would be nice..one can save the time and money involved in getting the H1B stamped.
Click to expand...

True. But a clear disadvantage with AP would be that you need to get an AP every year until you get your green card. You will have to take transit visas for some airlines. With a visa you will not have to renew every year, unless you r extending the visa beyond the 6th year. You do not need transit visa if you have a valid H1B visa (not 797 validity).

In a case like I797 valid until 2006, I would prefer to get a visa and not bother about AP renewals. But if it involves not going to your home country and have to send to Washington D.C. and wait for 5 months then it is a pain.

Again it all depends on individual situations. Rememy should be applied on a case-by-case basis.

HTH.
 
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