Regarding H1 during 485. Please advise

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NIW_NSC

Registered Users (C)
have the following 2 questions on AP. Please advise guys. I would very much appreciate the help.

My wife is currently working on a approved H1 and is planning to go to India in the last week of April. We dont have my 140 approved yet. She will be getting her H1 stamped in India and using that to enter the US. We are planning to apply for AP this week just as a backup in case her H1 stamp gets rejected or something.

1. Has anyone had any expereience with H1 stamp getting rejected inspite of an approved H1 because one applied for 485(immigration intent) vs H1(non-immigrant visa) ?

2. My lawyer tells me that she needs to have the approved AP in hand before she leaves US if she plans on using that to enter the US or else my 485 MIGHT be considered abandoned? In the worst case that her H1 stamp gets rejected, I was planning on mailing her the approved AP to use(that is if we dont get it before she leaves). Again she only plans on using AP as a backup if my H1 stamp gets rejected? Can one do that?

Thanks much
 
If she has valid H1-B visa stamp on her passport, she won't need AP to go and come back. But if i understand correctly, she does't have it now and she is planning to get one in India.
So, AP is required BEFORE she leaves US. She can just show the AP when coming back without any hassle. Mailing AP to her in India is not legitimate and will not be accepted by US Immigration. As said, AP should be approved before anyone leaving the country.
I would recommend just get AP and forget about all the hassles getting visa stamped in India.
 
Thanks NewHope

The problem is I submitted a response to my 140 RFE and its not yet approved and we dont want to risk her H1 by going on AP. Ideally, she just wants to go and get her H1 stamped and return on her H1. In this situation, my lawyer advised me that its not even mandatory to apply for AP but she can just as backup and not use it to reenter unless her H1 gets denied. What I am worried about is can one deny her the H1 stamp because we applied for 485 that is since we have immigration intent?
 
NIW_NSC said:
Thanks NewHope

The problem is I submitted a response to my 140 RFE and its not yet approved and we dont want to risk her H1 by going on AP. Ideally, she just wants to go and get her H1 stamped and return on her H1. In this situation, my lawyer advised me that its not even mandatory to apply for AP but she can just as backup and not use it to reenter unless her H1 gets denied. What I am worried about is can one deny her the H1 stamp because we applied for 485 that is since we have immigration intent?
Click to expand...

As I understand, H1-B visas are "dual-intent" and an intent to immigrate to the US should not affect the H1-B status. Please see the last question on the page http://uscis.gov/graphics/howdoi/h1b.htm

I was in a similar situation. While my 140 and 485 applications were in progress, I successfully got my H1 stamp renewed in Canada last summer. No questions on the 140/485 application came up.

As far as the risks associated with applying for an H1 in India, I cannot comment.

bltzkrig
 
Thanks bltzkrig. My lawyer confirmed the same too a few minutes back that her H1 should not be rejected becuase of a pending 485. Do you guys know how long it typically takes to get an AP in NSC. I understand that the times vary all the time but someone who applied recently, can you give me a ballpark number? Right now, the dates on the website say 12/22/2005. Anyone applied after that ?
 
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NIW_NSC said:
Thanks bltzkrig. My lawyer confirmed the same too a few minutes back that her H1 should not be rejected becuase of a pending 485. Do you guys know how long it typically takes to get an AP in NSC. I understand that the times vary all the time but someone who applied recently, can you give me a ballpark number? Right now, the dates on the website say 12/22/2005. Anyone applied after that ?
Click to expand...
H1 is dual intent VISA so it will not effect H1B stamping in INDIA.
It took ard 30-45 days for me to get AP recently from NSC
 
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