Maintaining H1 status while re-entering on AP

A

armie

Registered Users (C)
If someone has valid I-94 on I-797, can he enter on AP (H1 stamp expired) and still have H1 status?
Does anything need to be mentioned at the port of entry about this?
Would there be any problems with spouse getting H-4 stamp without primary having a H1 stamp?
 
i have asked this question to my employer's attorney......should know something in 2-3 days..

but people say that you can use AP to travel...come back and continue on your H1B as though nothing happened (its kind of a grey area.....maybe because stamp is required only for travel....and H1 approval is enough to be in legal status, working with that employer...)

second part of your question is very complicated.....because i remember that when we go for dependent stamping.....they ask a copy of the stamp from the primary passport........so i dont know whether they will accept a expired stamp.....along with the latest approval notice...
 
My 2 cents

You should really consult an attorney as you are taking some critical steps and could end up being struck outside US.

My views:

- A valid visa is needed to enter as H1. Petition being valid does not mean anything. So, if your stamped visa has expired, you CANNOT enter. You have to use AP.

- A valid visa for principal is necessary for the dependent to get a visa. In fact, the duration of validity for the dependent is based on your visa expiry date ( I went through this and my spouse got only a 2 month visa - It means, she has to enter US within those 2 months and can remain here till the validity of I-94 (usually petition expiry))

- So, your spouse will NOT be able to get a H4 visa if your visa has expired. However, if you have Advance Parole, she should also get AP and avoid the visa stamping delays.

- If your visa has expired and you have an AP - it is a indication of intent to immigrate. I have heard that once you get I-140, you lose your ability to get non-immigrant visas...I doubt you will qualify for a non-immigrant visa like H1, H4..
 
EB1India said:
If your visa has expired and you have an AP - it is a indication of intent to immigrate. I have heard that once you get I-140, you lose your ability to get non-immigrant visas...I doubt you will qualify for a non-immigrant visa like H1, H4..
Click to expand...

That is not altogether true. For dual intent visas, such as H, L and some others, immigrant intent is not a problem at all.

8 CFR §214.2(h)(16)(i),
"H-1B or H-1C classification. The approval of a permanent labor certification or the filing of a preference petition for an alien shall not be a basis for denying an H-1C or H-1B petition or a request to extend such a petition, or the alien's admission, change of status, or extension of stay. The alien may legitimately come to the United States for a temporary period as an H-1C or H-1B nonimmigrant and depart voluntarily at the end of his or her authorized stay and, at the same time, lawfully seek to become a permanent resident of the United States."

Check out the following links:
- http://www.uscis.gov/lpBin/lpext.dl...b-18775?f=templates&fn=document-frame.htm&2.0
- http://www.americanlaw.com/dintent.html
 
ginnu said:
after use of AP one can continue to work on the H1B and can also file H1 extensions if continues to work for the H1B sponsoring employer.
Click to expand...
I follow this part, the complication is when EAD is used for part-time work for a second employer; If re-entered on AP while having a valid I-94 of the I-797 (but H1 stamp expired) and continue to work for the H1 sposoring employer - what will be the status?
 
ginnu said:
after use of AP one can continue to work on the H1B and can also file H1 extensions if continues to work for the H1B sponsoring employer.read 2000Memo

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
Click to expand...

Hi Ginnu,

My HIB expires May2007 (6th yr) and at this time I have approved I-140 (see my signature).
I didnot apply for a EAD when I filed I-485 and AP thinking that that I should apply in Feb-March of 2007 so that incase my I-485 if not approved by that time I should have it ready to continue my employment. Is this a right move?
I did get a AP so that if in case I have to travel ouside US. My H1B visa stamp has already expired.

Any views?

Arydk
 
arydk said:
Hi Ginnu,

My HIB expires May2007 (6th yr) and at this time I have approved I-140 (see my signature).
I didnot apply for a EAD when I filed I-485 and AP thinking that that I should apply in Feb-March of 2007 so that incase my I-485 if not approved by that time I should have it ready to continue my employment.
-------------you have H1 till May 2007 you can file H1 extension in Dec/Jan or file EAD and keep valid EAD with you
Is this a right move?
-----that is upto you
I did get a AP so that if in case I have to travel ouside US. My H1B visa stamp has already expired.



Arydk
Click to expand...
 
armie said:
I follow this part, the complication is when EAD is used for part-time work for a second employer; If re-entered on AP while having a valid I-94 of the I-797 (but H1 stamp expired) and continue to work for the H1 sposoring employer - what will be the status?
Click to expand...

Once you use the EAD the H1 is toast.
 
TheRealCanadian said:
Once you use the EAD the H1 is toast.
Click to expand...

Apparently Murthy disagrees:

Question: I"m currently working on H1B full time with a company. If I work part time on EAD for another company, along with my full-time job, will I still lose my H1B visa?

Answer: Working for any employer other than the H1B sponsoring employer means that the person is using the EAD to work for another employer, unless the person obtains another H1B to work on a part-time basis for the second employer. It is not a big deal, since upon travel and reentry a person again may return to H1B status by entering on the H1B approval notice and the H1B visa stamp in the PP. Jul-14-2003.


Question: Can I work part time using my EAD?

Answer: An EAD enables a person to work in any manner s/he chooses, either with a position connected with the original LC filing or not, part time or full time, etc. Ultimately, a person has to satisfy the AC21 law if s/he is the principal applicant and not the dependent spouse. May-26-2003.



Question: While I work on H1B full time with my GC-sponsoring employer, can I work part time with my EAD anywhere in the evenings and on weekends?

Answer: Yes, a person on an EAD may work anywhere s/he pleases, even as a consultant or subcontractor, since the EAD is generally nonrestrictive regarding employment, except with respect to its validity only being for 1 year. Mar-24-2003.
 
armie....i think thats again in the grey area....since EAD means unrestricted employment......one can use it freely for part time work while keeping the full time H1B valid......it can be a good thing because one can start a company with EAD..
 
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armie said:
Apparently Murthy disagrees:

Question: I"m currently working on H1B full time with a company. If I work part time on EAD for another company, along with my full-time job, will I still lose my H1B visa?

Answer: Working for any employer other than the H1B sponsoring employer means that the person is using the EAD to work for another employer, unless the person obtains another H1B to work on a part-time basis for the second employer. It is not a big deal, since upon travel and reentry a person again may return to H1B status by entering on the H1B approval notice and the H1B visa stamp in the PP. Jul-14-2003.


Question: Can I work part time using my EAD?

Answer: An EAD enables a person to work in any manner s/he chooses, either with a position connected with the original LC filing or not, part time or full time, etc. Ultimately, a person has to satisfy the AC21 law if s/he is the principal applicant and not the dependent spouse. May-26-2003.



Question: While I work on H1B full time with my GC-sponsoring employer, can I work part time with my EAD anywhere in the evenings and on weekends?

Answer: Yes, a person on an EAD may work anywhere s/he pleases, even as a consultant or subcontractor, since the EAD is generally nonrestrictive regarding employment, except with respect to its validity only being for 1 year. Mar-24-2003.
Click to expand...

Hi Armie,

Look at the answer above (in red) only when " a person working ON AN EAD may work anywhere.....". It is very clear that if you are working with H-1B you cannot do part time with your EAD. The moment you excercise your EAD you will loose your nonimmigrant status. That is what my attorney told.
 
The first anwers says...

"It is not a big deal, since upon travel and reentry a person again may return to H1B status by entering on the H1B approval notice and the H1B visa stamp in the PP. Jul-14-2003."

My concern is if one can re-enter on AP and continue to work for the GC/H1 sponsoring employer with a valid H1 approval notice, without renewing the EAD which was once used for part-time job.
 
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