Return on H4 or AP. Please advice

H

honeybee

Registered Users (C)
All,

I am asking a question that has been asked a lot ! Sorry for my ignorance.

My wife is planning to visit her parents back home in India. She has Advance Parole approved till Jan 2005, her H4 visa is stamped on passport till June 2006. I am on H1B and we have not used EAD till now.

I am planning to send her and let her use H4 visa to enter back in US. I also want to give her Advance Parole in case of any issues.

The question is : If she uses Advance Parole to get in US, how my status on H1 and her status on H4 gets affected.
Also to use Advance Parole to get back in, does she needs to show Advance Parole or show her intend to use Advance Parole while leaving US.

Your responses are greatly appreciated.

Thanks,
-Honeybee
I-140 & I-485 Concurrently Filed Sept 2003
EAD, AP Feb 2004
I-140 Waiting
I-1485 waiting
:)
 
It would be so pleasant if you actually used the Search functionality since you are aware that the question has been asked before. *sigh* but I guess that is too much to ask.

Getting back to your question:
I always recommend using AP as compared to any visa, basically because it is the best way to get into the country after applying for 485. (for more details on why do use search)

While leaving the country your wife needs to do nothing different, just hand over the I94 like she would normally.

On entry, she needs to show the immigration officer the AP, on which he will guide her to secondary inspection.

Finally using AP DOES NOT violate your/her right to work on H1. The only thing that changes status is using the EAD.
 
Your wife can use either H-4 or AP to come back. It will not affect your H-1B status.

If she has an EAD and plans to work, it doesn't really matter which one she uses. Now, if she does not plan to work, using the H-4 visa will probably be safer: In case your I-140 (not approved yet) or I-485 get denied for any reason, you both are in H-1B/H4 status and should be fine. Now, if she uses AP to enter the country, she would have to leave immediatly. This is something to keep in mind.
 
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wac03-148 said:
Your wife can use either H-4 or AP to come back. It will not affect your H-1B status.

If she has an EAD and plans to work, it doesn't really matter which one she uses. Now, if she does not plan to work, using the H-4 visa will probably be safer: In case your I-140 (not approved yet) or I-485 get denied for any reason, you both are in H-1B/H4 status and should be fine. Now, if she uses AP to enter the country, she would have to leave immediatly. This is something to keep in mind.
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Actually that is NOT true.

Entering on AP DOES NOT jeapordize the H1/4 status in any which way.

Like I mentioned above, AP is the BEST way to enter the US after 485 has been applied for, the main cause being the suspicion that AOS has been "Abandoned" since entering on H1/4 signifies that you wish to keep that status as compared to AOS.

The way to circumvent the above mentioned situation is to carry the original 485 receipt with you when you travel, and when you enter the country at port of entry and asked to show visa, you need to show the 485 receipt, and make sure that the immigration officer does not mark your AOS as abandoned.

As far as the opinion that she will have to leave the country on the off chance that her 140/485 is denied, the less said the better. The moment her AOS is denied, she will fall back to her valid status, H4, whereby she can continue to live as long as her status is valid.

Another scenario to be considered is if the Primary applicant (H1) is approved before the benificiary (H4), in which case the undelying H4 is automatically cancelled. Then she will ABSOLUTELY need the AOS to maintain status.

Please check facts before posting.
 
I140_takes_for_ever,

Thank you for your posting. When my wife will use Advance Parole to enter US, the Advance Parole is till Jan 2005. In that case, do I need to continuing extending Advance Parole to keep her in status.e.g. to apply for her Advance Parole 4-5 months in advance to get the new Advance Parole before Jan 2005 or she will be in status as per AOS.

Also she needs to carry the following documents with her:-

a) I-485 receipt notice ( original or photocopy)
b) Advance Parole document and 3 photo copies of it.

Please advice if she needs to carry some other documents also. Your help is appreciated.

Thanks,
-Honeybee
 
That's it, nothing more. That's the basic set.
As I-140 said - entering on AP does not mean anything for the H status, she can continue using her H4 and she's still on H4. My wife went home many times and at one point we realized that waiting at 5 am at US embassy is not necessary any more because she can use her AP.

Now, some older posts will say that she should bring EAD (if she's working), both I-485s, marriage cert., I-140 etc but I don't think that's necessary, all those documents were necessary for obtaining AP anyway.

My wife entered always on AP only, they never asked for any other doc, I-485 or anything. It was a bit of a hassle, though because of "secondary inspection", but less hassle than US embassy in Zagreb.
 
140_takes_4ever said:
Like I mentioned above, AP is the BEST way to enter the US after 485 has been applied for, the main cause being the suspicion that AOS has been "Abandoned" since entering on H1/4 signifies that you wish to keep that status as compared to AOS.

The way to circumvent the above mentioned situation is to carry the original 485 receipt with you when you travel, and when you enter the country at port of entry and asked to show visa, you need to show the 485 receipt, and make sure that the immigration officer does not mark your AOS as abandoned.
Click to expand...

Actually, as both H-1B/H4 allow dual-intent, you can use them without abandoning your AOS application. That's why folks travelling on H1B/H4 do not need AP to enter the country. See link below for more details:

http://www.murthy.com/news/n_favint.html

140_takes_4ever said:
As far as the opinion that she will have to leave the country on the off chance that her 140/485 is denied, the less said the better. The moment her AOS is denied, she will fall back to her valid status, H4, whereby she can continue to live as long as her status is valid.
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I don't think that is accurate. They way I see it: People fall back to their previous non-immigrant status when they 1) enter the country on that status (or change their status here F1->H1B), 2) file for AOS, 3) AOS is denied. When you enter on AP, you are entering on AOS (and although you may have an H1B/H4 stamp on your passport, you are not on that status). If AOS is denied, you do have to leave the country and come back on your previous non-immigrant status (maybe just a trip down to Tijuana or up to Vancouver and back, but still need to enter the country again).

I found this (old) article on Shusterman, where officers at the airport are instructed to tell you that AP is not necessary to enter the country when you present both AP and a valid H1/H4.

http://www.shusterman.com/hlmemo500.html

Again, I am not a laywer but that's my understanding.
 
honeybee said:
the Advance Parole is till Jan 2005. In that case, do I need to continuing extending Advance Parole to keep her in status.e.g. to apply for her Advance Parole 4-5 months in advance to get the new Advance
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She can only travel outside as long as the AP is valid. She cannot travel on an AP that is pending approval and which will be sent to her outside the country for her to enter the country.

What I mean by the above is that she needs to either:
1. Complete the journey and enter the US before Jan 2005. OR
2. Wait in the country, till you apply for a new AP and after you get an AP valid for 2005, she can travel on it after she gets it in her hands.

As far as documents that she needs to carry, personally, I agree to what ruxrux mentioned. An AP does not require ANY supporting documents (as you can see from its documentation), I have travelled multiple times on AP and NEVER been asked for any proof of support. But it is recommened to carry a few copies of the AP. Since she is a derivative case, it might also be advised to carry a copy of your 485 receipt and copy of your marriage certificate if you want to be super cautious about it. :)

But if Secondary inspection is in SFO, my past experience has been brilliant, it takes just 5 mins if not less to get through it. No questions asked, just drop your passport and AP in the tray, and sit down. Someone will call your name and hand over the passport and stamped AP. So don't sweat it.
 
Yes, she'll maybe have more problems while trying to board the plane, because airlines must not accept US-bound passengers without making sure the passengers can enter US. Unfortunately, the personnel at many airports around the world is uneducated AP-wise; my wife and I had a most wonderful trip to Chile spoiled at the last moment by the moron in Santiago who almost made us miss the flight because he just had to fax a copy of my AP to INS in Miami - my wife had a stamp on it and mine came with no stamp (of course, because she went to Croatia 3 months before that).
Oh my goodness. When's this going to end?
 
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