travel on H1/H4 or AP

P

pkothari1979

Registered Users (C)
Hi experts,

I filed my 485 in Aug 2002. I've recieved my AP and EAD both
whereas my spouse has received only EAD (no AP). I have
H1-B, valid until oct 2004 (and consequently my spouse
has H4). My question is: Next month, we are planning to travel
to India for 4 weeks. Should I use my AP or H1/H4 ? Would
there be any issues ?

Help appreciated.

Thanks,
Pkothari
 
No issues, as long as you have valid H1/H4 STAMPED on the passports. If you do not, you will need to get them stamped at a consulate in India, using your I-797 notice of approval of H1/H4. You would have received I-797 while in the US if you renewed (extended) or transferred H1.

H visa is dual intent, and can be used while on AOS.
However, please note: If either of you have USED your EAD, the H status is invalid. The absolute legal position would be that if the H1 is invalid, so is the H4, but not vice-versa.
 
We have valid H-visas till jan 2004 and also renewed AP before going on our vacation last month. We used H1 and H4 when we came back with no problems. We did carry all AOS related copies with us and also had APs with us, in case.
If you are still on H1 and not used EAD you should have no problem using your H visas when you come back.
There was no waiting when I returned but I wouldn't know about you.
 
To use AP while maintaining H1, you don't have to have you H1 visa STAMPED in your passport. If your H1 visa is appoved in US, and still valid, you can use AP to enter US. If you already have a valid H1 visa STAMPED in your passport, then why bother using AP? you can simply use H1. The advantage of using AP while maintaining H1 is: you don't need a H1 STAMP in your passprt to enter US, but still keep the H1 stauts, and tranfer your H1 to other firms after you come in. Please correct me, if I am wrong
 
i486i486,
You are correct except for the last point. Once you re-enter US using your AP, you can still work using your un-expired H1, but only for the company that sponsored the H1. If you want to change company, you have to use your EAD. Now, somebody correct me if I am wrong :)
pkothari1979,
Both you and your wife can re-enter US with your H1 and H4 respectively, provided you have it stamped in your passport (valid visa). If so, you don't even have to worry about AP. If not, you may have to get it stamped in a US consulate in India. I heard, one has to except some delay in getting H1/H4 visa in India thanks to police verification. Not sure... However, has you or your wife used your EAD for working in the US? If so, the situation is different and you may have to use your AP itself for re-entry.

Good luck,

sunamb

wac 02-069-XXXXX
 
Originally posted by i486i486
I heard you can still tranfer your H1B, even you used AP to enter US. Any other authority?
Click to expand...

Although I am not an authority by all means, let me throw in my 2 cents.

Provided that the regulation that governs continued employment after entering the country on AP using H-1B is intermediate and seems to be well-forgotten and it does not say absolutely anything about transferring H-1B while being a parolee, I surmise the following.

Yes, you surely can transfer your H-1B to a different employer. But consider this. Working for the original employer while being a parolee identifies your H-1B as a practical work permit, which is valid for that employment only. Now, when you transfer the H-1B you may no longer work for the original employer, but also the transfer means nothing to you at the moment because of your parolee status. Have you been in H-1B status, you would be able to start working for the new employer immediately. So, having a transfer approval at hand, you should leave the country (get your passport stamped with a new H-1B visa, if necessary) and re-enter in H-1B status. Now, this is permissible under the current regulations. Thus, you should be able to start working for the new employer with your transferred H-1B visa.

Convoluted enough?
 
I dont' understand, with new H1B approval at hand, why do you need to leave the country and come back with a H1B visa? you can simply use your AP again if you need to leave and come back again. please comment. Thanks!
 
Originally posted by i486i486
I dont' understand, with new H1B approval at hand, why do you need to leave the country and come back with a H1B visa? you can simply use your AP again if you need to leave and come back again. please comment. Thanks!
Click to expand...

In my opinion, to enjoy your transferred H-1B, you would have to recover H-1B status as well. I seriously doubt that change of status from parolee/adjustee to H-1B is permissible without leaving the country, which precludes that your H-1B transfer approval notice will not have a valid I-94 attached. Therefore, to get a new I-94 stamped with 'H-1B' status, re-entry on H-1B is necessary.

Anyway, a bottomline. If you ask me, I would not go this way. I would get an EAD.
 
Definitely go the EAD route! As Bitterman posted, it is too convoluted any other way.

Strongly advise you not to mess with INS or play in the grey areas. These are not good political times to be given the benifit of doubt! It is best to play it safe and sound. Besides using EAD is not such a bad thing. And in case your AOS is denied you can always switch back to H1 if that is what you really want to be on. I don't believe that H1 buys you anything if you are careful about applying well before the 90 day period of expiry of current EAD etc.
 
One lawyer says there is not any risk for transfering H-1B after using AP. Any one have the similar situation now or before? Thank you very much for comments
 
Originally posted by i486i486
One lawyer says there is not any risk for transfering H-1B after using AP. Any one have the similar situation now or before? Thank you very much for comments
Click to expand...

Please, take no offence, but if you believe your lawyer so much, why all these questions? :)
 
Even people on this borad have differen opinons regarding transfering H1b after using AP. For exmaple, Duke-of-Ca here says there is no problem at all. Clarification of this issue will benefit for eveyone here with the similar situtions. Thanks a lot for your support
 
Originally posted by i486i486
Even people on this borad have differen opinons regarding transfering H1b after using AP. For exmaple, Duke-of-Ca here says there is no problem at all. Clarification of this issue will benefit for eveyone here with the similar situtions. Thanks a lot for your support
Click to expand...

Different opinions do not matter. What we need for a definite clarification is a precedent. Precedents where a person not only transferred his/her H-1B, but also got an approval of I-485 down the line. Which may have not happened yet; or maybe, those people are no longer with us because INS has rejected their I-485's...

Even a precedent may not establish a definite clarification, because INS officers in lack of official guidance tend to improvise. And their improvisations may not be to benefit of the immigrants. Thus, where one person has successfully used some immigration law without official regulations to his/her own benefit, it does not mean that others will be able to do the same.
 
The question here is how much do you like to gamble?

Are you willing to take the chance on a grey area, betting on the fact that INS will see things your way? Or play it safe and give INS no reasons to doubt let alone RFE your application?

When it comes to precedence and INS, I am still doubtful, INS officers live in a small cocoon, they have no clue what their predecessors allowed. So I would be wary even if there was a precedent.

Offcourse a word of warning - while people on the forum can help you. There is no alternative to the opinion of a "good" lawyer! He/she will know your situation best and can provide much better advise (usually)! So if your lawyer has given you the green light. I might be inclined to believe it, regardless of my gut instinct about the INS!
 
Originally posted by BitterMan
Although I am not an authority by all means, let me throw in my 2 cents.

Provided that the regulation that governs continued employment after entering the country on AP using H-1B is intermediate and seems to be well-forgotten and it does not say absolutely anything about transferring H-1B while being a parolee, I surmise the following.

Yes, you surely can transfer your H-1B to a different employer. But consider this. Working for the original employer while being a parolee identifies your H-1B as a practical work permit, which is valid for that employment only. Now, when you transfer the H-1B you may no longer work for the original employer, but also the transfer means nothing to you at the moment because of your parolee status. Have you been in H-1B status, you would be able to start working for the new employer immediately. So, having a transfer approval at hand, you should leave the country (get your passport stamped with a new H-1B visa, if necessary) and re-enter in H-1B status. Now, this is permissible under the current regulations. Thus, you should be able to start working for the new employer with your transferred H-1B visa.

Convoluted enough?
Click to expand...

Please could anybody give a link to some documents, or may be oficcial statements, which say that it's permissible to re-enter the US on H1 status after using AP.

Thank you
 
Originally posted by sd1975
Please could anybody give a link to some documents, or may be oficcial statements, which say that it's permissible to re-enter the US on H1 status after using AP.
Click to expand...

Perhaps, there are other documents on the subject. I'm too lazy to search for them right now (just had lunch, you know ;) ).

http://www.usvisanews.com/memo985.html

see item 6.

6. Is an alien who has a multiple entry I-512 and who has previously been paroled into the United States now eligible for admission as an H-1 or L-1 if he or she is still in possession of a valid H-1 or L-1 visa?

Yes, the alien may be admitted as an H-1 or L-1. However, aliens returning from abroad may only be admitted as an H-1 or L-1 when they have a valid H-1 or L-1 visa (unless visa exempt), remain eligible for H-1 or L-1 classification, and, where there has been a recent change of employer or extension of stay, have evidence of an approved I-129 petition in the form of a Notice of Action, Form I-797, indicating approval or a notation on the nonimmigrant visa indicating the petition number and the employer's name. If they do not meet these criteria, then they use their I-512.

11. In Chapter 15.4 of the Inspector's Field Manual, the Special Note A for nonimmigrant classification H-1 B should be revised to read as follows:

(A) Foreign residence requirement. H-1 B does not have to establish he or she has a foreign residence. For information pertaining to dual intent, see AFM Appendix, 23-4.

111. In Chapter 15.4 of the Inspector's Field Manual, add Special Note E for nonimmigrant classification L-1 to read as follows:

(B) Dual intent. For discussion of applicability of dual intent, see AFM Appendix 23-4.
 
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