Law Offices of Rajiv S. Khanna, P.C.
Travel to India on AP - Need Advice
- Thread starter gckosam_1
- Start date
That is again not clear. Whether you can wait until the expiry of current I-94 or renew it immediately after arrival.
I.e. One year after you are paroled into US.
My current H1 is valid until 2009. I don't have valid visa on passport. I am planning to go to india and use AP when I come back. Can anyone please make clear that if we use AP do we need to apply for H1 extension immediately after we come back from India? Or Can I just keep my current h1 and work with the same employer ?
I am also in your situation. It is very hard to digest that you need to apply for H1 extension every time you travel on AP.
AP is issued for 1 year with multiple entries. If one uses it 4 times during a year, is he required to renew or extend it 4 times?
How much does it cost to renew H1? Attorney and filing fee?
I think we need some expert opinion from Gurus or Rajeev on this. It is also against the popular belief that you can continue with the same emplyer after coming back using AP and it will not affect your status.
TheRealCanadian
Volunteer Moderator
I'm at a loss as to where this idea came from, that you need to extend a perfectly valid H1 petition after entering on AP.
TheRealCanadian;
Is this still true that if I receive a fresh H1 (valid till 2010) based on my H1 transfer using AC21, and I travel on AP in e.g. Jan 2008, After coming back to US I can still continue with my new employer whose H1 petition was approved till 2010 WITHOUT doing anything or applying for extension? and that Extension is only relevant where it is due because of H1 (I-797)expiration.
What would be my status when my AP exprires but my I-797 is valid for another two years. I will not have I-94 (H1) because I would have surrenderd it while leaving the US and coming back using AP?
Suppose I go to Canada for stamping, but get stuck in administrative processing, Can I come back to US on AP? That way, when embassy completes its processing, theys can put a stamp in my passport.
Please comment.
Is this still true that if I receive a fresh H1 (valid till 2010) based on my H1 transfer using AC21, and I travel on AP in e.g. Jan 2008, After coming back to US I can still continue with my new employer whose H1 petition was approved till 2010 WITHOUT doing anything or applying for extension? and that Extension is only relevant where it is due because of H1 (I-797)expiration.
What would be my status when my AP exprires but my I-797 is valid for another two years. I will not have I-94 (H1) because I would have surrenderd it while leaving the US and coming back using AP?
Suppose I go to Canada for stamping, but get stuck in administrative processing, Can I come back to US on AP? That way, when embassy completes its processing, theys can put a stamp in my passport.
Please comment.
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From Cronin memo I got this.
"Until the final rule is published, an alien who was an H-1 or L-1 nonimmigrant, but who was paroled pursuant to a grant of advance parole, may apply for an extension of H-1 or L-1 status, if there is a valid and approved petition. If the Service determines the alien's application for an extension of nonimmigrant status, the decision granting such an extension will have the effect of terminating the grant of parole and admitting the alien in the relevant nonimmigrant classification."
This says we need to extend our H1 to come back to nonimmigrant status.
But it doesn't say we need to do it immedieately after we come back .. and I recently extended my H1. If I go to India and come back on AP, Do I need to extend my H1 again to comeback to H1 status from parolee status.
I read many threads. But no one is giving any clear information on this. I heard in India many H1 Visas are getting rejected that means we should be prepared for using AP in the worst case.
Since getting GC will take years, many people need to go to india. Gurus Please share your ideas and experiences on this issue.
"Until the final rule is published, an alien who was an H-1 or L-1 nonimmigrant, but who was paroled pursuant to a grant of advance parole, may apply for an extension of H-1 or L-1 status, if there is a valid and approved petition. If the Service determines the alien's application for an extension of nonimmigrant status, the decision granting such an extension will have the effect of terminating the grant of parole and admitting the alien in the relevant nonimmigrant classification."
This says we need to extend our H1 to come back to nonimmigrant status.
But it doesn't say we need to do it immedieately after we come back .. and I recently extended my H1. If I go to India and come back on AP, Do I need to extend my H1 again to comeback to H1 status from parolee status.
I read many threads. But no one is giving any clear information on this. I heard in India many H1 Visas are getting rejected that means we should be prepared for using AP in the worst case.
Since getting GC will take years, many people need to go to india. Gurus Please share your ideas and experiences on this issue.
This is what I am also looking for. Suppose you travel 3 times a year with AP, do you need to extend your H1 three times to maintain non-immigrant status?
TheRealCanadian, If I have a perfactly valid H1 petition, expiring in 2010, and travel on AP in Jan 2008, Per Cronian Memo, Reference from immigration-law portal, and responses in this thread suggest that I still need to EXTEND my H1 to remain in non-immigrant status.
I think, interpretation of the Cronian memo is not correct and limited to the folks whose H1 has expired and the enter on AP and apply for H1 extension to maintan non-immigrant status.
Please comment.
TheRealCanadian
Volunteer Moderator
Your statement is on its face correct. Let me explain what I think the implications of the Cronin Memorandum are. Please note that this is just some musing on how I think it works, not anything official.
The H1 provides both work authorization and the ability to enter the US, and does the work of the EAD and AP. The EAD only provides work authorization and the AP only allows one to enter the US. The Cronin Memorandum seems to say that if you use AP to re-enter the US (ie. don't use the H1 as an entry document), you can still use the employment authorization provided by the H1 petition to work for your H1 sponsor, and the sponsor only.
My guess is that you would still be a parolee or adjustee, not an H1 non-immigrant, but your employment would be authorized for the duration of the H1 petition. Once the H1 petition expired, the Cronin Memorandum says that it can be renewed and an alien could be allowed to switch back into H1 status on its extension if requested in the I-129.
Now what I think you're asking is whether the alien can immediately switch to H1 non-immigrant status after entering using AP. The Cronin Memorandum doesn't address that situation specifically (it only addresses what happens when the H1 expires). But based on my reading of the Cronin Memorandum, I believe that an alien could immediately file an I-539 requesting a change to H1 status based on the unexpired H1 petition.
I'm not sure why one would want to do so. If the I-140 is approved, I-485 denial is rare these days (and I wouldn't travel outside with only AP to get back with if my I-140 wasn't approved and I was doing concurrent filing).
Does that help at all?
Extract from Cronian Memo:
"3. If an H-1 or L-1 nonimmigrant has traveled abroad and was paroled into the United States via advance parole, the alien is accordingly in parole status. Does this interim rule allow him or her to now apply for an extension of nonimmigrant status?
Ans: Until the final rule is published, an alien who was an H-1 or L-1 nonimmigrant, but who was paroled pursuant to a grant of advance parole, may apply for an extension of H-1 or L-1 status, if there is a valid and approved petition. If the Service determines the alien's application for an extension of nonimmigrant status, the decision granting such an extension will have the effect of terminating the grant of parole and admitting the alien in the relevant nonimmigrant classification.
4. If an H-1 or L-1 nonimmigrant has traveled abroad and reentered the United States via advance parole, the alien is accordingly in parole status. How does the interim rule affect that alien's employment authorization?
Ans: A Service memorandum dated August 5, 1997, stated that an "adjustment applicant's otherwise valid and unexpired nonimmigrant employment authorization ...is not terminated by his or her temporary departure from the United States, if prior to such departure the applicant obtained advance parole in accordance with 8 CFR 245.2(a)(4)(ii)." The Service intends to clarify this issue in the final rule. Until then, if the alien's H-1 or L-1 employment authorization would not have expired, had the alien not left and returned under advance parole, the Service will not consider a paroled adjustment applicant's failure to obtain a separate employment authorization document to mean that the paroled adjustment applicant engaged in unauthorized employment by working for the H-1 or L-1 employer between the date of his or her parole and the date to be specified in the final rule.
Thank you TheRealCanadian for detailed expaination. It clears the doubt as to why one would apply for an H1 extension if H1 itself is NOT nullified by using AP alone. Payrolee can, therefore, continue working for the same employer on whose unexpired petition he was authorized to work. Once H1 expires, One has to apply for an extension or switch to EAD and that is where the need for H1 extension arises.
One Doubt: In US, the status is determined based on I-94. Parole I-94 is usually granted for one year but H1 could be valid for subsequent years. In this case, after the expiry of maximum allowable limit of stay on I-94 (Parole), do we need to do anything to get a fresh I-94 or just wait until H1 expires to file extension and get a new I-94?
Final Rule: Is it published somewhere or Cronian Memo is still valid?
"3. If an H-1 or L-1 nonimmigrant has traveled abroad and was paroled into the United States via advance parole, the alien is accordingly in parole status. Does this interim rule allow him or her to now apply for an extension of nonimmigrant status?
Ans: Until the final rule is published, an alien who was an H-1 or L-1 nonimmigrant, but who was paroled pursuant to a grant of advance parole, may apply for an extension of H-1 or L-1 status, if there is a valid and approved petition. If the Service determines the alien's application for an extension of nonimmigrant status, the decision granting such an extension will have the effect of terminating the grant of parole and admitting the alien in the relevant nonimmigrant classification.
4. If an H-1 or L-1 nonimmigrant has traveled abroad and reentered the United States via advance parole, the alien is accordingly in parole status. How does the interim rule affect that alien's employment authorization?
Ans: A Service memorandum dated August 5, 1997, stated that an "adjustment applicant's otherwise valid and unexpired nonimmigrant employment authorization ...is not terminated by his or her temporary departure from the United States, if prior to such departure the applicant obtained advance parole in accordance with 8 CFR 245.2(a)(4)(ii)." The Service intends to clarify this issue in the final rule. Until then, if the alien's H-1 or L-1 employment authorization would not have expired, had the alien not left and returned under advance parole, the Service will not consider a paroled adjustment applicant's failure to obtain a separate employment authorization document to mean that the paroled adjustment applicant engaged in unauthorized employment by working for the H-1 or L-1 employer between the date of his or her parole and the date to be specified in the final rule.
Thank you TheRealCanadian for detailed expaination. It clears the doubt as to why one would apply for an H1 extension if H1 itself is NOT nullified by using AP alone. Payrolee can, therefore, continue working for the same employer on whose unexpired petition he was authorized to work. Once H1 expires, One has to apply for an extension or switch to EAD and that is where the need for H1 extension arises.
One Doubt: In US, the status is determined based on I-94. Parole I-94 is usually granted for one year but H1 could be valid for subsequent years. In this case, after the expiry of maximum allowable limit of stay on I-94 (Parole), do we need to do anything to get a fresh I-94 or just wait until H1 expires to file extension and get a new I-94?
Final Rule: Is it published somewhere or Cronian Memo is still valid?
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As per this http://www.murthy.com/news/ukadvpar.html,
expiration of Parole I-94 is generally not a problem.
After reading so many posts on so many forums, I guess I am pretty clear that one can change from "Parolee" to "H1" status by filing H1 extension after one enters on AP even if the H1 is "not stamped" in the passport. I am just wondering if H4 can that be extended similarly ?. If not, what's the other option ?. Go out and get it stamped ?.
I wish someone would be able to answer this.
TheRealCanadian
Volunteer Moderator
You can try and argue that the Cronin Memorandum's provisions about extending H status after using AP apply to H-4s, and see how far you get. I don't see anything to say it wouldn't.
Keep in mind, however, that the Cronin Memorandum primarily applied to work authorization after entering on AP, which is not an issue for H-4s since the H-4 provides no permission to work.
resident1374
Registered Users (C)
TheRealCanadian - wow! it sure that seem to know a lot on these topics. Thanks for helping out people who have questions - after having said that, I have a question
- I have H1 till May 2008 (no stamp in passport); will apply for 3 year extension next month (based on I140 approval); I do have an approved EAD and AP, but don't plan to use of either of them. After I get my extension, I plan to get it stamped, as I want to use my H1B for my travel plans next year. The I485 is still pending - so, my question is - is it safe to travel on H1B when the I485 is pending?
The reason for H1B is to use to as a backup or get married before the I485 gets approved.
Thanks.
TheRealCanadian
Volunteer Moderator
Of course. Just make sure to bring along your I-485 receipt and AP as a backup.
RealCanadian,
Just to be sure, If I-485 is pending and H1 is valid, do you think there is a need to apply for AP?
In my case, I have not applied for AP as my H1 is valid until 10/2009 and is stamped.
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TheRealCanadian - wow! it sure that seem to know a lot on these topics. Thanks for helping out people who have questions - after having said that, I have a question
After I get my extension, I plan to get it stamped, as I want to use my H1B for my travel plans next year. The I485 is still pending - so, my question is - is it safe to travel on H1B when the I485 is pending?
The reason for H1B is to use to as a backup or get married before the I485 gets approved.
Thanks.
Our case is just the opposite. Our H1/H4 is also valid till May 2008. We are traveling abroad next week and we'll be using AP to enter USA. We won't be getting H1/H4 stamped since the stampings would be valid only till May 2008.
Once we enter on AP we are planning to file for 3 year H1 extension based on I-140 approval which will convert my status from "Parolee" to "H1". But we were worried if this is valid for H4 as well. RealCanadian's answer makes sense. Cronin memo doesn't explicitly say H4/L2 can't be extended this way. Thanx !
On other hand, if we travel abroad after getting the 3 year extension then, once we get back we BOTH will be on parolee status for the next 3 years. Or, are you in parolee status only till AP I-94 expiry date ?. What happens after that ?
On a side note, can one file for H1/H4 extension when one is not in US (thru a lawyer) ? As per our current plan, we will qualify for the next extension when we are outside USA.
sdrblr, my $0.02 on your case is this:
If you are outside USA and your GC gets approved then you can't enter USA even if your H1 is valid and stamped. Coz your status in USA has already changed to "immigrant". You cannot then enter on "non-immigrant" as well.
After July 1999, even AP is not required to re-enter USA while AOS is pending. You just need your original I-485 receipt notice and valid H1 visa. If GC gets approved (meaning AOS is no longer pending) only then you need AP to enter USA.
http://www.murthy.com/news/UDnewins.html
Sorry if this is wrong.
If you are outside USA and your GC gets approved then you can't enter USA even if your H1 is valid and stamped. Coz your status in USA has already changed to "immigrant". You cannot then enter on "non-immigrant" as well.
After July 1999, even AP is not required to re-enter USA while AOS is pending. You just need your original I-485 receipt notice and valid H1 visa. If GC gets approved (meaning AOS is no longer pending) only then you need AP to enter USA.
http://www.murthy.com/news/UDnewins.html
Sorry if this is wrong.