harac,
I guess it is possible for a certain AP application to fall through cracks and still be approved even if the applying person leaves the country. Logically, this could happen for two reasons. Firstly, the leaving person does not surrender his/her I-94 at the time of departure. And secondly, the fact that the person left was not propagated yet to the adjudicating officer. In both cases, I would choose a conservative approach and elect not to use such an AP. Why? Here's my reasoning:
- If the person in question did not surrender his/her I-94 at the time of departure, technically, it is a violation of immigration procedures. Well, there are situations when you do not surrender your I-94, but it is clearly not one of them. Therefore, the adjudicating officer was not informed of the person's departure and therefore the AP was obtained through misinformation. Use of such an AP is highly undesirable.
- If the adjudicating officer was not timely informed of the person's departure, then one could argue that the AP is valid because it was issued in spite of the fact of the departure. However, this argument can lead an immigration officer at POE to cancel the AP right on the spot. So, this situation is not pretty as well.
So, what if an immigration officer at POE will not ask any questions about the prior departure and admit you in the country? Well, this could happen as well. But, as a reasonable person, I would not rely on it. Because if the officer will not admit you, you will be placed into removal proceedings (provided that you don't have any other valid entry document; or even if you have one, because attempting to gain entry using an invalid document is already breaking the law).
OK, what to do? Stick to the original plan of getting H-1B and H-4. As with any entry document, admission is not guaranteed, but chances are MUCH higher.
Again, this is only my interpretation and it should not be used instead of a legal advice. I should probably add a "legal disclaimer" mumbo-jumbo to my signature