Re-entering US using AP and H1B

S

sunamb

Registered Users (C)
Gurus,
Can I still be on H1B status even after re-entering the US using AP? My attorney is saying I can continue to work on H1B status even if I am re-entering the US using AP. Am I not forfeiting my H1 status by using my AP? I am planning to go to India next month and re-enter using AP. My current H1B status is valid till 7/31/2004, but do not have a valid H1B stamp in my passport since I have not gone outside the US after getting my H1B extension and did not get it stamped here in the US.

Thanks!!!!

WAC-02-069-XXXXXX
 
you'll have your H1B canceled (at the port of entry) if you have it stamped, while you are entering on AP.... It happened to me.

since you dont have it stamped, I dont know what is going to happen. May be your lawyer is correct.
 
My wife entered twice ( last Aug. and this Feb.)using her AP without loosing her H-1 visa. Or more precisely, she has not been told that she can not work as a H-1 holder so far.
 
if we use AP to re-enter, H1 is no longer valid

I think, if one uses AP to re-enter into the US, then the underlying H1-B is automatically forfieted. So, the person cannot work on H1-B once after he/she enters into the US using AP.

Please see excerpts from usvisanews.com....

6. I am an H-1B holder. My H-1B was processed here and I don't have a visa stamp on my passport. I went to Mexico a year ago to get a visa stamp but was not able to get one. The U.S. Consular Officer told me that he could verify my information, and thus I would have to go back to my home country to have it stamped. I didn't go back, and I decided to continue working and process my green card through employment sponsorship. Now my I-140 is approved and my I-485 is pending. I have also been issued advance parole, but my application for employment authorization is still pending. At the present time, is there a risk involved if I travel back to my home country using advance parole? Would the previous denial of a visa stamp (in Mexico) have a negative effect on my admission to the U.S.? What would be the effect of the fact that my EAD application is still pending?

A: There is no such thing as risk-free travel, however advance parole used during the pendency of your I-485 is one of the means involving the least risk. If the denial of the visa stamp in Mexico was merely based on a lack of adequate resources/information, it should not affect your re-entry. However, if the officer had any other reasons for the denial (e.g. suspected misrepresentation), then it could. The fact that your EAD application is still pending does not affect your ability to travel and re- enter, however using advance parole to travel DOES mean that you would need the EAD in order to work after re- entering. (In other words, you could no longer work based on your prior H-1B status.) If your EAD has been pending at least 90 days, you should be eligible for an interim EAD from your local INS office which would permit you to work after your travel if the I-765 remained pending at that time.

Also note that a person should not travel using advanced parole if they have spent more than 180 days illegally in the United States. Whether you should use that Advanced Parole or not depends on what happened after you re- entered the U.S. If you re-entered using your unexpired I-94 card as an H-1B, you do not have a problem. If you did not enter using your unexpired I-94 card as an H-1B, there are some issues that you may want to discuss with your attorney before traveling abroad with that Advanced Parole.
 
for sks2003

If what you told is true, how come my wife gets paychecks monthly without any problem?
 
xyk,
I think you have a valid point.... I also read somewhere else (could not remember where) that if you re-enter using your AP and you work for the same employer for which your H1B is, you can still be on H1 status, until, you change employer or use EAD to work for the same employer. They even mentioned that you are eligible for H1 extensions.......


WAC-02-069-XXXXXX
 
Initially there was some confusion as to validity of H1B after reentry using AP. I think it was clarified by INS that it was ok to continue working for same employer on H1B even after reentry using AP.
 
Travel on AP
The option for travelers are.
1. Travel on H1 with I-485 receipt. But you have to have a valid visa stamp on the passport. Work on H1 after entering into US.
2. Travel on AP with I-485 receipt. You don't have to stamp the H1 visa. But you have to work on EAD after entering US using AP. H1 is automatically invalidated if you enter the country using AP.


jaxen
Senior Member
Registered: May 2002

Different opinion...
Once in a while I have to zap a response- this time for c4naperville. Your response is inaccurate. Usage of AP does not mean that H1 is invalidated!!!
One can go back to H1 even after usage of AP. Although I have discussed the reasons before in many an archive, I'll repeat it again here (for the benefit of naperville resident)
1. whether you use H1 or EAD, is proved by the I9 form filed with the employer which never gets to INS!!
2. After 485 , H and L visa holders need not get a AP. H or L visa is sufficient
3. Per June 2001 memo, one old (expired even) h stamp is enough to admit somebody into US - yep U need the latest H approval in hand.

4. Mastaan and gctry did it. One did revalidation of H visa after entering into US using AP. Other did the H1 and H4 stamping at chennai consulate after entering US using AP. See the archives.

Read murthy's "previous" chats...

On a different note, If U start using EAD (i.e. filed I-9) U better use AP for travel...


Chat : April 30, 2001
sashanka : Under what circumstances, can a person work on H1 (dated for 4 more months) after using AP recently? Current EAD expires soon and EAD extension request (NSC-55 days old) is still being processed.

SPEAKER_Attorney_Murthy : A person is legally allowed to be on both the H1B and the EAD. The INS has stated in various Memos that merely because a person entered on the AP does not prevent the person from working on the H1B. It is possible to file an H1B extension so that next trip one can reenter on the H1B status instead of AP status as a parolee.

Chat : January 8, 2001

bala123 : After filing for I485, if INS approves H1B extension even after using AP, can a person continue to work without an EAD but with the renewed H1B please?

SPEAKER_Attorney_Murthy : Yes, the INS has stated that that is fine.

Coolboy
Member 18th December 2002
You need to have EAD if u enter using AP or u need to have H1 stamping if you want to enter using H1. You cannot work on H1 if you entered using AP.

Here is the thing you need to be aware of. When you leave the country, you will surrender you new I-94 along with the old I-94 stamped in your passport at the airport. You need to get a new I-94 while entering the country or you can enter using AP in which case you will not be issued I-94. Without I-94 you are not supposed to be working on H1. Because on I-94 when you enter using H1, your status will be mentioned 'H1B till visa /extension date'. So you are on H1 status as long as your I-94 is mentioned with that. As you do not get I-94 when you are entering on AP, you cannot work on H1. Hope this helps.
 
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