Please participate: AP Faq

Silly Man

Silly Man

Volunteer moderator
AP Faq

Like the EAD faq, I say lets create an AP faq. I've never filed for AP myself, so I don't know most of the answers.

Lets use this thread to post the most commonly asked questions, and their discussed answers. Once we have a good enough discussion on this, I will go thru them and prepare a faq just like the EAD faq.
 
I'll start with a question asked a lot around here.

Question: Whether by using AP to re-enter to U.S.A. invalidate H status or not?

Answer: It does not invalidate, but inactivates the H-1. When you enter using AP, technically, you are not entering on a visa. You are entering on Parole. If you wish to reactivate an existing H-1 in such a situation, just step outside USA and reenter using the old, unexpired H-1 visa.

(Rajiv gave the above answer, so I take it .. it is correct).
 
AP won't affect H-1B

Silly Man:

According to several discussions recently, using AP does NOT affect H-1B provided you work for the same employer. Only using EAD does.

Therefore, you don't have to step outside of USA to reenter to reactivate H-1B. Just come back using AP and work under the old H-1B for the SAME employer.

If you work for a second employer, then you have to use EAD which invalidates H-1B.
 
ganshm, I know the conversations ur talking about .. the above is what Rajiv said .. Is there a credible source confirming what you said?
 
Last edited by a moderator:
Re: AP won't affect H-1B

Originally posted by ganshm
Silly Man:

According to several discussions recently, using AP does NOT affect H-1B provided you work for the same employer. Only using EAD does.

Therefore, you don't have to step outside of USA to reenter to reactivate H-1B. Just come back using AP and work under the old H-1B for the SAME employer.

If you work for a second employer, then you have to use EAD which invalidates H-1B.
Click to expand...

That information is legally incorrect folks. What I said is the way it goes, all discussions notwithstanding.
 
Last edited by a moderator:
Re: Re: AP won't affect H-1B

Originally posted by operations
That information is legally incorrect folks. What I said is the way it goes, all discussions notwithstanding.
Click to expand...

Ah... there were not that much of a discussion, really. But finally we've got hold of a licensed lawyer and can ask this:

Is the following memo (specifically the part about employment authorization) still in effect, or was it overruled by some other later memo?

INS Memo on H and L Visa Holders Traveling on Advance Parole
 
4. If an H-1 or L-1 nonimmigrant has traveled abroad and reentered the United States via advance parole, the alien is accordingly in parole status. How does the interim rule affect that alien's employment authorization?

A Service memorandum dated August 5, 1997, stated that an "adjustment applicant's otherwise valid and unexpired nonimmigrant employment authorization... is not terminated by his or her temporary departure from the United States, if prior to such departure the applicant obtained advance parole in accordance with 8 CFR 245.2(a)(4)(ii)." The Service intends to clarify this issue in the final rule. Until then, if the alien's H-1 or L-1 employment authorization would not have expired, had the alien not left and returned under advance parole, the Service will not consider a paroled adjustment applicant's failure to obtain a separate employment authorization document to mean that the paroled adjustment applicant engaged in unauthorized employment by working for the H- I or L-1 employer between the date of his or her parole and the date to be specified in the final rule.
 
Re: Re: Re: AP won't affect H-1B

Originally posted by BitterMan
Ah... there were not that much of a discussion, really. But finally we've got hold of a licensed lawyer and can ask this:

Is the following memo (specifically the part about employment authorization) still in effect, or was it overruled by some other later memo?

INS Memo on H and L Visa Holders Traveling on Advance Parole
Click to expand...

I see nothing contrary to what I said in the memo, guys. If you enter on advance parole, you have NOT entered on H-1. So if you want to reactivate H/L, exit and come in again. I am not aware of any law/policy that holds differently.
 
Re: Re: Re: Re: AP won't affect H-1B

Originally posted by operations
I see nothing contrary to what I said in the memo, guys. If you enter on advance parole, you have NOT entered on H-1. So if you want to reactivate H/L, exit and come in again. I am not aware of any law/policy that holds differently.
Click to expand...

The question was not about the status, but about work authorization. The memo stipulates that even in parolee status you can work for the same employer, provided that your H-1B visa (either stamped in the passport or not) has not expired yet.

ganshm has worded it a little bit differently, which indeed could be interpreted as entering on Advance Parole in fact results in H-1B status. But, again, the meaning was the work authorization.

---

So, the memo stands. Parolees can continue employment for the same employer with unexpired H-1B. Until further regulations are published, that is.
 
Info for AP Faq...

Some info on AP, for the FAQ:-
--------------------------------------

(A) When having both AP and valid H1-B, one should always enter using AP. Its the "INS Expected" way to do and trust me, its much easier at the port of entry. With AP, you stand in the line of US Citizens / Permanent Residents. With H1-B, you always run the risk of lengthy secondary inspection where you are relegated to the room full of convicts, illegals, etc.

(B) The first time, you enter with a new AP, INS keeps the second copy of the original and then stamps the other copy. For subsequent travels, you can use this second original copy. It is VERY STRONGLY advised to keep multiple photocopies of the second original, as the INS officer may want to keep copies.

(c) God forbid, but in case you happen to lose your original AP while in a foreign country, then IT IS NOT THE END OF THE WORLD. You can get a "proctoral" (typo!!!) Advance Parole entry at the POE, if you show valid police records of the reason for loss (theft, robbery, etc.)

(d) It is very important to carry your EAD, I-485 application or other valid status/employment authorization documents with the AP.
 
The core issue

I think the core issue here is whether I have to "step outside USA and reenter to activate H-1B".

My situation is that I don't want to get a H-1B stamp in my home country due to the possibility of lengthy delay and denial (though slim). I entered the US three years ago and am now in H-1B status with I-485 pending.

Therefore, after I return, Bitterman's posting appears to say that I can still work under H-1B, which is still valid.

While Rajiv's opinion is that I need to step outside USA and reenter to activate H-1B. Otherwise I have to change to EAD. Since my H-1B won't expire until May 2005, I prefer to use H-1B.

So if I can come back using AP (without a valid H-1B visa stamp) and work under H-1B, that would perfect for me.

Any thoughts?
 
Re: The core issue

Originally posted by ganshm
While Rajiv's opinion is that I need to step outside USA and reenter to activate H-1B. Otherwise I have to change to EAD. Since my H-1B won't expire until May 2005, I prefer to use H-1B.
Click to expand...

Please, don't misinterpret operations' statements. They do not contradict with my statements, as well. All clarification was about the status issue. Entering on AP does not mean that you have any benefits of H-1B, but implies that you may continue employment (under certain conditions) using the latent at the time H-1B as your work authorization.

Therefore, (and now I am referring to a discussion on this board some time ago) in order to enjoy benefits of H-1B such as portability (extension is possible while in parolee status), you have to recover the H-1B status, leaving and re-entering the country, and presenting H-1B visa at the time of entry.
 
Well What Rajiv said is perfectly correct, he was talking about status, he never said any thing about invalidation of H1.

If you enter using AP your status is Parole status and not h1 status, the memo says if you work on the unexpired h1 petition it will not be considered as unauthorized employment
quote
if the alien's H-1 or L-1 employment authorization would not have expired, had the alien not left and returned under advance parole, the Service will not consider a paroled adjustment applicant's failure to obtain a separate employment authorization document to mean that the paroled adjustment applicant engaged in unauthorized employment by working for the H- I or L-1 employer between the date of his or her parole and the date to be specified in the final rule.
unquote
. Also according to memo if you apply for h1 extension after entering on AP and if and when h1 extension is granted your status again becomes h1-b non immigrant status as approval of extension invalidates your parole status.

quote

Until the final rule is published, an alien who was an H-1 or L-1 nonimmigrant, but who was paroled pursuant to a grant of advance parole, may apply for an extension of H-1 or L-1 status, if there is a valid and approved petition. If the Service approves the alien's application for an extension of nonimmigrant status, the decision granting such an extension will have the effect of terminating the grant of parole and admitting the alien in the relevant nonimmigrant classification.
unquote

So in your case ganshm you can come back and work on h1 after using ap. but it never hurts to have EAD handy :)

My understanding is once you enter under parole status, your status is valid only until a decision on your underlying 485 is made, if unfavorable decision(rejection) is made then you loose the status and you start accruing unauthorized stay
 
Last edited by a moderator:
H-1B portability

Thanks guys. I think debate does produce truth.

One more question, Bitter said I would lose H-1B portability benefit. What exactly is it?
 
Okay staying on the topic , pror to my 485 approval , I have applied for AP renewal 3 times (last one just weeks before my approval ). Although my law firm applied for the renewals, I clearly remeber what was filled in each of the column.

it's very simple form you fill
section1 name, address etc and
section 2 check option d
section 3
for date of intended trip you can put word "multiple varies" (if you know the date put it). same holds true for length of travel.
answer to the question if you are in deportaion proceddings generally it would be no (duh)

well then you can go to section 7
and check option more than 1 trip.

sign it and send it with requried fee and supporting documents(485 receipt copy, marriage cert, i-140 copy etc etc)

for what supporting documents are needed just follow the link provided by vipsha.

p.s:AP approval is generally valid from the date of approval for 1 year , say you have a ap and expires in oct 2003 and if you apply for renewal in june 2003 , and get approved in july 2003 then the new ap will be valid from july 2003 till june 2004.
 
Last edited by a moderator:
Well, thanks to Rajiv, we got a few things clarified here today. Anyone willing to put that in question answer format?
 
Okay here is some of the discussion in q/a format, please correct misstated or incorrect information provided

How long is AP Valid

Typically 1 year

How many times can I use a AP

If the AP says multiple entries you can use it for multiple trips

How long can I stay out of US?

There is no stipulated amount, your duration cannot exceed the expiry date on AP and you have to enter before the expiry date


Do I need an EAD if I enter using AP.

if you have a valid h1-B petition, and if you are returning and working for the same employer as stated in your h1 notice , you will not need EAD to continue working for same employer, However your status will be parole status and not h1-B status

I have entered using AP, how do i get back to h1 status

You need to go out and enter on h1-b visa or you need to get h1-b status extension approved to get back to h1 status


I have valid h1-b visa and AP what do I need to show at the US entry point

You can enter on either, if you produce both, typically the officer at poe will let you enter on your h1-b status

I have used EAD can I enter US using my h1-b visa stamp

No if you have used EAD you need AP to enter US

based on comments from Pcee and Silly Man the answer is modified as following( I just did a cut and paste of Silly Man's post)

using EAD would invalidate your H1, so unless you have a fresh valid h1 stamp, you need to use your AP


Can I apply for AP, when I am outside US

No, you need to apply for AP before leaving the US and should have obtained approval prior to leaving
 
Last edited by a moderator:
You must log in or register to reply here.
Top