Lots of questions, gurus please help..

X

xdai

Registered Users (C)
I plan to go to China on Thanksgiving Day and return to USA on Christmas Day. I am the spouse in our case. My current H-1 will expire by end of this year and I’ve asked my employer to renew it. I will renew my EAD and AP by end of this month since they’ve expired. Now I’ve got the following questions:

1. How big is the chance that my case gets approved by Thanksgiving time based on my ND?
2. If my case gets approved before I leave for China but I don’t have time for stamping on my PP is the approval notice good for reentering USA?
2. If my case gets approved while I am in China what are the consequences, if any? What status should I use to enter USA? Is the printout from BCIS website good for reentering?
3. If the case is not approved before I return to USA and the primary applicant is unemployed at the time I enter USA will there be any negative compact? Will I be rejected entry at the port? BTW, the primary applicant will not go on the trip and is unemployed at this moment.
4. If I use AP to reenter USA and my H-1B visa is still valid then am I still in H-1B status? I know lots of people having asked this question before but I’ve never heard a unanimous answer. What I understand is that AP and H-1B are two different things. As long as my H-1B is valid at the time of entry I am not automatically switched to EAD. Am I right?
5. As for the H-1B renewal, I read somewhere that if I stay with the same company then I will have valid H-1B status provided the renewal application is filed before current H-1B expires and it’s approved within 8 months after current H-1B expires. Am I right? Is there really a BCIS published rule about this?
6. Finally, what kind of documents should I bring for the trip?

I know I asked lots of questions. Please bear with me. I appreciate everyone’s help.
 
1. How big is the chance that my case gets approved by Thanksgiving time based on my ND?

There is a possibility that your case may be approved by Thanksgiving.

2. If my case gets approved before I leave for China but I don’t have time for stamping on my PP is the approval notice good for reentering USA?

No, you'll need to use AP.

3. If my case gets approved while I am in China what are the consequences, if any? What status should I use to enter USA? Is the printout from BCIS website good for reentering?

Use your AP to enter.

4. If the case is not approved before I return to USA and the primary applicant is unemployed at the time I enter USA will there be any negative compact? Will I be rejected entry at the port? BTW, the primary applicant will not go on the trip and is unemployed at this moment.

No negative impact. I'm a derivative applicant and re-entered using AP. No questions asked except for routine ones like 'Where are you coming from?', 'How many days were you out of the country?', etc.

5. If I use AP to reenter USA and my H-1B visa is still valid then am I still in H-1B status? I know lots of people having asked this question before but I’ve never heard a unanimous answer. What I understand is that AP and H-1B are two different things. As long as my H-1B is valid at the time of entry I am not automatically switched to EAD. Am I right?

Yes, if your H1 is valid and you have a valid stamp in your passport you can use H1 to re-enter. You have to be working on H1, doesn't matter even if you have an EAD as long you haven't used it.

6. As for the H-1B renewal, I read somewhere that if I stay with the same company then I will have valid H-1B status provided the renewal application is filed before current H-1B expires and it’s approved within 8 months after current H-1B expires. Am I right? Is there really a BCIS published rule about this?

No idea about this rule.

6. Finally, what kind of documents should I bring for the trip?

If you plan to travel on H1, carry your H1 approval notice and employment letter. If you plan to use AP, carry original AP, copy of 485 Receipt Notice, EAD, but typically immigration officer will simply look at AP and stamp it.

Hope that helps.
 
mavishka...

"5. If I use AP to reenter USA and my H-1B visa is still valid then am I still in H-1B status? I know lots of people having asked this question before but I’ve never heard a unanimous answer. What I understand is that AP and H-1B are two different things. As long as my H-1B is valid at the time of entry I am not automatically switched to EAD. Am I right?"

Yes, if your H1 is valid and you have a valid stamp in your passport you can use H1 to re-enter. You have to be working on H1, doesn't matter even if you have an EAD as long you haven't used it."

I don't have a H-1 Stamp on my PP since I've never gone out of USA as far as today and I don't intend to apply for the visa at US consular in China since it's a lot more trouble. The question I intended to ask is: if I use AP to reenter, does my H-1B status automatically become void even if it's still valid by then?

Thanx a lot.
 
Re: mavishka...

Originally posted by xdai

I don't have a H-1 Stamp on my PP since I've never gone out of USA as far as today and I don't intend to apply for the visa at US consular in China since it's a lot more trouble. The question I intended to ask is: if I use AP to reenter, does my H-1B status automatically become void even if it's still valid by then?

Thanx a lot.
Click to expand...

NO. Your H1B wont become void, if you use AP.

I was in H1 and had a week of validity. At the POE, the officer, if I had AP. So, I had to use my AP to re-enter but didnt have my EAD at that time. After a month of my re-entry, I got my EAD but never used it till now. I am on H1 as I applied for my H1 7th year extension as soon as I re-entered.

Hope this helps....
 
Re: mavishka...

.I don't have a H-1 Stamp on my PP since I've never gone out of USA as far as today and I don't intend to apply for the visa at US consular in China since it's a lot more trouble. The question I intended to ask is: if I use AP to reenter, does my H-1B status automatically become void even if it's still valid by then?

If you don't want to apply for a visa in China, you'll need to use your AP to re-enter. There are mixed opinions about the H1 becoming void after entering with AP. My opinion is that technically, your H-1 will become void if you use AP since you're entering as an immigrant using AOS. My 2 cents.
 
mavishka & atri, look what I found...

"If you don't want to apply for a visa in China, you'll need to use your AP to re-enter. There are mixed opinions about the H1 becoming void after entering with AP. My opinion is that technically, your H-1 will become void if you use AP since you're entering as an immigrant using AOS. My 2 cents."

This is what I found:

http://www.murthy.com/UDnewins.html

- An H-1 or L-1 holder who entered the United States on advance parole can apply for an extension of H or L status, and the approval of that extension would enable the person to return to the U.S. on H-1 or L-1 status. (To maintain that status, the person cannot seek outside employment.)

- 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.

- If an H-1 or L-1 holder presents both advance parole documents and documents of valid H-1 or L-1 status at the port of entry to the U.S., the INS Inspector should tell the person that she/he is not required to present the advance parole, and admit the person to the U.S. on the H-1 or L-1 status.

- An H-1 or L-1 holder who has entered the U.S. with an advance parole document may depart and return as an H-1 or L-1 holder if that status has not expired.

The above is based on INS May 2000 memo so I think it's quite clear. What do you guys think?
 
xdai:

Don't be too concerned. Do travel on your AP! Everytime when you return to the US, the INS officers at the borders would stamp your AP and your passport with a validity of another 365 days.
 
my 2c

#4 Once you come back, AP has nothing to do with whether you can work or not! If you have a valid H1 approval notice (irrespective of visa stamp) you can continue in H1 status. Otherwise you need EAD to work. But the question is if you don't get your H1 extension before you leave the country (you can still leave because you have AP to come back in) then I think your H1 extension is treated as abandoned so logically in that case you need EAD to work.

#5 Yes, if H1 extension is filed in time (before old one expired) then one can stay and work in H1 status for 8 months, and after that H1 must be approved. But note that one cannot travel based on pending H1 OR for that matter just H1B approval notice (one needs a valid H1 visa stamp in the passport).

- PCee

PS: one exception to #4 is let's say one has a valid H1 but for some reason uses EAD then preceeding H1 status becomes invalid and one must leave the country and come back in using H1 to get back into H1 status OR need to file for new H1 to get back into H1 status. Here my point is using EAD changes your status from H1 to AOS pending (for work point of view), where as using AP has no baring on whether one can work or not, it simply allows some one to enter the country and stay until allowed time.
 
pcee...

"#4 Once you come back, AP has nothing to do with whether you can work or not! If you have a valid H1 approval notice (irrespective of visa stamp) you can continue in H1 status. Otherwise you need EAD to work. But the question is if you don't get your H1 extension before you leave the country (you can still leave because you have AP to come back in) then I think your H1 extension is treated as abandoned so logically in that case you need EAD to work."

I read a while ago from www.immigration-law.com that EOS (extension of status) is not considered abandoned if one leaves USA while petition is not approved but COS (change of status) is considered abandoned in the same situation.

"#5 Yes, if H1 extension is filed in time (before old one expired) then one can stay and work in H1 status for 8 months, and after that H1 must be approved. But note that one cannot travel based on pending H1 OR for that matter just H1B approval notice (one needs a valid H1 visa stamp in the passport)."

Regarding the 8-month rule, I think I read it from www.immigration-law.com. Where did you get the info? I mentioned to my attorney about this one but he said that he was not aware of this. So is this just some kind of individual interpretation or clearly written by BCIS?

Thanks a lot.
 
From http://www.murthy.com/chat1127.html
prasak : My 485 application has been filed in September 2000 and my H1B is about to expire by January 2001. I have not received the receipt number yet. Will i be still in valid status after January? Thank you.

SPEAKER_Attorney_Murthy : Yes, in valid legal status to remain in the U.S. but one cannot work without the EAD. Safe rule may be to file an H1B extension since that will provide an automatic 240-day work extension to legally work in the U.S.

rkd : If my visa is expiring in Dec and my company had filed for renewal a month earlier, will I be in valid legal status to work after December?

SPEAKER_Attorney_Murthy : Yes, see answer above re the automatic 240-day extension to live and work if the H1B extension has been filed to work with the same employer timely. (You use the word "visa" but we assume you are asking about your status.)

Vik : is there anything against sending my EAD and H1B applications at the same time to the INS office. which one is faster? thanks.

SPEAKER_Attorney_Murthy : Vik, there is no problem or prohibition in sending both to the INS. Both are about the same time but filing the H1B extension allows a person to continue working with the employer for up to 240 days while the extension is pending.

--------------------------------------------------------------------
http://www.murthy.com/chat0226.html
krai : Can a transfer & extension of H1B / I-94 be applied at the same time i.e same I-129? For what period after filing is one permitted to remain in USA?

SPEAKER_Attorney_Murthy : Now for this question, a person may file transfer and extension together and a person can remain here until the INS decides on the case. The prior rules re 120 days or 240 days no longer applies since March 2000.

Related link to this topic (AP? or H1?)
http://www.murthy.com/arc_uds/UDadpe.html
 
pcee...

so I can assume the 240-day rule is indeed there although I have yet to find it on BCIS website.

Regarding whether EOS w/same company application is considered abandoned if one goes abroad before being approved, do you have any other resource? Like I mentioned before I read it on www.immigration-law.com but I would like to see it appear somewhere else.

Thanks a lot.
 
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