spouse travel using AP

[iulkcg]

I posted this in one of the 485 forums initially, but gurus in this forum may know this
issue better :

My husband is currently under H1B with labor pending, he got AP through my
485. If he travels using AP, can he still remain H1B when he gets back,
will using AP affect his H1B status and the pending labor?

Best,

 

[ginnu]

I posted this in one of the 485 forums initially, but gurus in this forum may know this
issue better :

My husband is currently under H1B with labor pending, he got AP through my
485. If he travels using AP, can he still remain H1B when he gets back,
will using AP affect his H1B status and the pending labor?
---- he can use AP and can be on H1 status

Read:
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
Chat User : Can one continue to work on H-1 after using advance parole to travel? Thanks.

Attorney Murthy : One may not only continue to work on the H1B, but one may also file an extension of the H1B even after having entered on the AP. The problem is that there are no USCIS regulations on the dual intent issues. We only have Legacy INS Memos on this subject from March and May 2000 with the second Memo of May 2000 superseding many sections from the earlier Memo. Generally, a person is allowed to file an H1B extension as long as s/he continues to work for the H1B sponsoring employer even if s/he previously used the EAD or entered on the AP.
Best,

 

[haoyun04]

This issue is not clear

I inquired from my lawyer what if I use AP without H1B visa to reenter USA. She suggested my use EAD right away and notify HR and fill in I-9 form. However I still am eligible to extend H1B for the 7th year.

I also checked chat room onMurthy.Com . The recent chat also had the similar question.
http://www.murthy.com/print/ch020705_P.html
==========================================================
Chat User : Can I reenter the USA on advance parole (sponsored by my spouse's employer), and still work on my H-1 which is sponsored by my employer? I don't have a visa for my H-1 and would like to use the advance parole. Thanks in advance.

Attorney Murthy : This issue is not entirely clear. A person is possibly allowed to work on the H1B and/or the EAD even if s/he enters on H1B status. The safer route is to have filed an EAD application before departing so that the EAD will allow one to state that s/he could have worked in either category. The Legacy INS Memos of March 2000 and May 2000 allow one to be able to file an H1B extension of status even if s/he entered the U.S. on the AP, which could lead to the conclusion that the USCIS would not object to the person's working based only on the H1B, though this issue is not entirely clear.