Traveling using AP

G

garemani

Registered Users (C)
Hi everyone,

I just got my AP and I'm really tempted to travel home after 5 yrs!!! But my I-140 is not approved yet and I got RFE on Jan31 with 12 weeks time allowance for response. This means that my I-140 will not be rejected unless I reply to my RFE and they decide that my response is not satisfactory. SO do you think I can go home using my AP and then when I come back reply to my RFE? In that case there is no risk because I will be inside US if I get the rejection letter!!!!

Also I'm on my H1 visa and I got my H1 inside US. Thus there is no stamp on my passport. Do you have any idea what will happen to my H1 visa if I use my AP for traveling? Do I need to get my passport stamped too eventhough I'm using my AP?
 
garemani said:
Hi everyone,

I just got my AP and I'm really tempted to travel home after 5 yrs!!! But my I-140 is not approved yet and I got RFE on Jan31 with 12 weeks time allowance for response. This means that my I-140 will not be rejected unless I reply to my RFE and they decide that my response is not satisfactory. SO do you think I can go home using my AP and then when I come back reply to my RFE? In that case there is no risk because I will be inside US if I get the rejection letter!!!!

Also I'm on my H1 visa and I got my H1 inside US. Thus there is no stamp on my passport. Do you have any idea what will happen to my H1 visa if I use my AP for traveling? Do I need to get my passport stamped too eventhough I'm using my AP?
Click to expand...


travelling while response to RFE to avoid risk is pending is no problem.
You may or may not opt for getting VISA stamped.
your H1 is still valid when u enter country with AP.
 
Garemani / Eb1doc:

I am in the exact same situation with the only difference being that I already sent the response to my RFE. My wife is on a H1. She is planning on reentering on H1B since my 140 is not approved yet as strongly suggested by my lawyer. I am cut pasting what my lawyer suggested. Please be careful.


"The attorney strongly recommends that you maintain your H1B status for as long as possible. Since the I140 is not yet approved, it is generally not a good idea to use an Advance Parole to enter the United States.

You can apply for the Advance Parole, but it cannot be used to return from abroad unless you receive it in your hand before you leave the United States. If you enter with the AP you will be a parolee and not in H1B status. Therefore, you may wish to apply for it now, but do not plan to use it (1) unless you receive it before you leave the U.S. and (2) only if your H1B visa application is denied."


Also, garemani is yours NSC? How long did it take for your approved AP? When did you apply? Please let me know
 
Hi NIW_NSC,

Thanks for your very useful information. I guess I will not use my AP for travelling now till I get my NIW case done! I filed at TSC in december. The AP shouldnt take longer than 30-40 days to get as long as I know from people who filed at TSC. However, they lost my passport copies so I got an RFE based on that. Thus, my case was longer, i.e., 2.5 months!
 
NIW_NSC said:
Garemani / Eb1doc:

I am in the exact same situation with the only difference being that I already sent the response to my RFE. My wife is on a H1. She is planning on reentering on H1B since my 140 is not approved yet as strongly suggested by my lawyer. I am cut pasting what my lawyer suggested. Please be careful.


"The attorney strongly recommends that you maintain your H1B status for as long as possible. Since the I140 is not yet approved, it is generally not a good idea to use an Advance Parole to enter the United States.

You can apply for the Advance Parole, but it cannot be used to return from abroad unless you receive it in your hand before you leave the United States. If you enter with the AP you will be a parolee and not in H1B status. Therefore, you may wish to apply for it now, but do not plan to use it (1) unless you receive it before you leave the U.S. and (2) only if your H1B visa application is denied."


Also, garemani is yours NSC? How long did it take for your approved AP? When did you apply? Please let me know
Click to expand...

Two things
1. You don't loose H1B status even if you enter using AP.
2. AP has no relation with I-140 but its relate dto I-485.

Your lawyer might be recommending that to avoid situation wherein if your concurrent application is rejected (owing to rejection of I-140) then you can't use AP to reenter....however, gentleman here is not submitting I-140 response so his application (including I-485) will not get rejected......but pending!!

Also one thing which is important is to get AP approved here with you!!!
 
Eb1Doc,

You have been an excellent help to people on this forum but I have a different opinion on the subject.I find this subject a little fuzzy and have been investigating it.

I confirmed with 2 lawyers and both of them said that even with 140 approved & 485 pending (where there is no chance of 485 being approved being from a retrogressed country), entering on AP makes you a 'parolee' and NOT H1B status. I dont think entering on AP still keeps the H1 valid. That is the reason people working on EADs use AP to enter since they are not on any valid non-immigrant visa but people who are not sure of their 140/485 approval are strongly suggested to keep their current visa status active by using their current visa stamp to enter. Again, even if you intend to enter on your H1, having an AP in hand is just insurance.


Guys, Please take the advice of AP/EADs posted here at your own risk and I suggest please consult a lawyer. Noone wants to get their status in trouble after all the hard work on the greencard pettions.

Good Luck to all
 
I also wish to repeat the above written disclaimer that I take no responsibility for accuracy of information provided.........Please use at your own risk.............but my opinion on this issue is based on what my lawyer told me....I will reconfirm and post it.....................
 
EB1doc is right.
H1-B serves dual purposes. Entering US with AP will NOT affect your H1-B status. This have been discussed many times and confirmed by many attorneys as well. Bottom line, you don't change your employer while doing this.
I myself left and came back with AP recently. AND i have renewed my H1-B without any problem. If your saying entering with AP will nullify my H1-B, i would NOT be able to renew my H1-B. Obviously, that is not right.
Hope this helps.
 
Based on what my lawyer told me when I was in this situation, I am inclined to believe the same way as NIW_NSC - that once you use the AP to enter the country, you are a parolee, and lose your H1-B status. Then, if your I-1485 (or your concurrent I-140/I-485) is denied, you are out of status.

EB1doc, If there are ways in which you can maintain your H1-B standing while as a parolee, I'd like to know.

bltzkrig
 
Thank you EB1doc - the link clears up a lot of the confusion. The key seems to be that you continue working for the same employer in order to be in H1-B status. Also, the last point seems to indicate that if you use the AP to enter the country today, you may choose to use a valid H1-B visa to enter the country tomorrow, and willingly interchange on subsequent re-entries as you wish!

"- An H-1 or L-1 holder who has entered the U.S. with an advance parole document may depart and return as an H-1 or L-1 holder if that status has not expired.
"
 
Ead, Ap, & H1

NIW_NSC said:
I confirmed with 2 lawyers and both of them said that even with 140 approved & 485 pending (where there is no chance of 485 being approved being from a retrogressed country), entering on AP makes you a 'parolee' and NOT H1B status. I dont think entering on AP still keeps the H1 valid.
Click to expand...

So you are suggesting that if a person has entered on AP and returning to the original H-1 employer he must use EAD to work? I think this is not true. The memo referenced above clearly says that 1) such employment is permitted without EAD, and 2) that the person can jump back to H-1 if he wishes so by filing EOS of H-1 status.

Now, two things here are not very clear. Maybe some guru can help. ;)

-- Assume that such person have approved H-1 petition before, say from 01/01/05 to 12/12/07. He travels now and comes back with AP. Can EOS for H-1 status be filed from "now" to "12/12/07", or it can be filed only when 12/12/07 comes near? Who should file EOS -- employer? Or the person can do that himself?

-- Can H-4 dependent do the same? The memo does not explicitely say anything about dependents, and there was a post recently on this board that such H-4 EOS was denied on the basis that "COS from parolee status is not allowed". Although it would be quite logical to allow for H-1 dependents to jump back to H-4 if H-1 him/herself is allowed to jump back to H-1.

NIW_NSC said:
That is the reason people working on EADs use AP to enter since they are not on any valid non-immigrant visa
Click to expand...

That is certainly true, but we're talking about the dependency that goes other way -- what are the consequences of AP usage.

NIW_NSC said:
but people who are not sure of their 140/485 approval are strongly suggested to keep their current visa status active by using their current visa stamp to enter.
Click to expand...

... or perhaps by jumping back to H-1 after each abroad trip. Although the question of dependents' ability to do the same is not clear.

I personally won't risk applying for H-1 in my home country, because it can take several months off-work in case of some delayed security check, in which case I am likely to have my employer very upset, at least. So if I were having emergency, I would be traveling on AP and try to get back to H-1 after coming back to US. In all other non-emergency cases, I agree that it is better to delay all travel until at least I-140 is approved if a person does not have current valid visa stamp.

/dzxing
 
Last edited by a moderator:
i think eb1doc is right!
I travelled to germany for conference after I-140 got approved (on my lawyer's recommendations)
entered using AP
mainintaining H1 B since (i had stamped one)
at immigartion officer asked for AP
recently applied for h1b extension. got approved
But to share truth i was scared as i also had this second hand informations abot H1 will be invalid...
 
Thanks guys for all the discussions. Wow..It looks more complicated. This discussion sure clears up a lot of things. So, let me just confirm if I got this right. So, if one enters using AP, they can immediately start working for their previous employer without filing for anything with CIS? My wife's H1 is a new H1(Approved on Feb 16th) and so if she enters using AP and no H1 stamp on her passport. Does she have to apply again for EOS / Chage of Status to H1 or ca she just continue working using her approved H1?
 
NIW_NSC said:
My wife's H1 is a new H1(Approved on Feb 16th) and so if she enters using AP and no H1 stamp on her passport. Does she have to apply again for EOS / Chage of Status to H1 or ca she just continue working using her approved H1?
Click to expand...

That was exactly what i did with my H1-B. She doesn't need to apply anything.
Just make sure she sticks with her current employer and she would be fine.
later on, when time comes for her to renew her H1-B (if necessary), she will not have any trouble.
 
Hi everyone! amazing exchange of information regarding my question! thank you all. I wanted to share with everyone what my lawyer emailed me today regarding my question:
---------------------------------------------------------

You may travel with AP during the process. However, you will lose your
H-1B visa status upon coming back with AP. The only way to get
yourself back in H-1B visas status is for your employer to file an H-1B
extension application when you come back to the States with AP.

The risk with coming back with AP is that if your I-140 and I-485
should be denied, you would not have any legal status. If that should
happen, you would have to leave the country immediately and come back
by applying for an H-1B visa at the US consulate in your country.
 
garemani said:
Hi everyone! amazing exchange of information regarding my question! thank you all. I wanted to share with everyone what my lawyer emailed me today regarding my question:
---------------------------------------------------------

You may travel with AP during the process. However, you will lose your
H-1B visa status upon coming back with AP. The only way to get
yourself back in H-1B visas status is for your employer to file an H-1B
extension application when you come back to the States with AP.

The risk with coming back with AP is that if your I-140 and I-485
should be denied, you would not have any legal status. If that should
happen, you would have to leave the country immediately and come back
by applying for an H-1B visa at the US consulate in your country.
Click to expand...

AS I UNDERSTAND LAWYER IS SAYING THAT YOU WILL LOOSE H1B STATUS IF YOU TRAVEL WITH AP IN PROCESS AND NOT APPROVED...OR IS THIS SAYING THAT YOU LOOSE H1B ON ARRIVAL AFTER USING APPROVED AP.... .........JUST CURIOUS
 
garemani said:
You may travel with AP during the process. However, you will lose your H-1B visa status upon coming back with AP. The only way to get yourself back in H-1B visas status is for your employer to file an H-1B extension application when you come back to the States with AP.
Click to expand...

That is right, your I-94 will say "parolee". But you can still work for your H-1 employer if you do not violate terms of H-1, and you do NOT need EAD for that. Although to get actual I-94 that would say "H-1", you need to apply for EOS for H-1.

For the benefit of the community here, could you ask your lawyer if your dependents can also file EOS for H-4 together with your EOS for H-1?

garemani said:
The risk with coming back with AP is that if your I-140 and I-485 should be denied, you would not have any legal status. If that should happen, you would have to leave the country immediately and come back by applying for an H-1B visa at the US consulate in your country.
Click to expand...

Per my limited understanding, in such a case you indeed lose your status, but you should be able to go to Canada for 5 minutes and re-enter in H-1 status using automatic visa revalidation, assuming you have some old visa (not necessarily H-1). So applying for H-1 in home country does not seem necessary. Check with good lawyer first, of course.

IANAL and all that.

/dzxing
 
Can Somebody Clear This Confusions Please / By The Way What Is Automatic Visa Revalidation? If You Can Do It In 5 Min Why Do You Go To Us Embassy In Canada At All?
 
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