Urgent: H1B status expired and not on Advance Parole

C

ccss1

Registered Users (C)
I seem to have got myself into some trouble because of a bad decison and incorrect information from my Company's HR. My H1-B status was expiring on March 1st, 2006 and I have a valid EAD and AP (until October 6, 2006). However, upon return after a trip outside the US on Feb. 15, 2006, I chose to show the H1 papers (instead of advance parole) at the POE. The officer stamped the I-94 until March 11th, 2006 (that is an additonal 10 days after h1 visa expiration date). Then on March 10th my attorney realized that my status in US is expiring and the only options left are :

1. Go immediately to either Canada/Mexico and come back in using advance parole (and basically get a new I-94).
2. File for H1-b extension with USCIS immediately so that the application reaches them at least by Monday, March 13th, 2006.

I tried option 1 and went to the Canadian embassy to seek a Canadian visa but they refused me saying they didn't find the reason to travel to Canada (for a I-94 renewal) good enough.

So lawyer has gone with Option 2 and filed for h1-B extension (beyond 6 years) based on pending I-485.

Questions:
1. Is it not true that in case one has a valid EAD and AP, but still chooses to use valid H1-B upon return from a trip outside USA, that upon expiration of the H1, one automatically switches to AP + EAD and continues to maintain valid status ??
2. Or is the status determined by the choice made at the point of entry ??
3. And most importantly, am I out of status until the H1-B extension is approved ?

In hindsight, had I known the issues involved and been provided better information by Co. HR, I realize that I could just have used the Advance Parole and avoided a lot of hassle and stress.

Please reply because I'm still confused about how it works. I tried to read a lot of forum threads/listing ... but it still doesn't seem very clear.

Thanks !!.
 
Just my opinion (I am not a lawyer).

I see NO trouble for you at all. Well your H-1 will expire, your H-1 visa stamp will expire also. But since you filed I-485 you will just be in AOS status after this, never out of status (only in case of denial of I-485).

You even have valid EAD, so next day after H-1 expiration just show your EAD to HR and you can continue working. You will have to fill a form for this.

If you want to travel, make sure you have valid AP in hand and come back before it expires. Surrender expired I-94 when leaving, show I-485 receipt and AP if they ask why I-94 expired.
 
Just realized that your H-1 expired already. Well then I hope you can still switch to EAD, fill the form with HR asap, I think they forgive you and may backdate the form making it effective since march 1st.

I am not sure if you can file H-1 extension after H-1 expiration date. I think it is possible only before it...

In any case, you are in status all the time (AOS), just make sure you were not working without authorization since march 1st.
 
Thanks much compass. From your response, there does not seem to be an issue for me.
Unfortunately, the lawyer does not think so. He says that had the H1 expired normally on March 1st (assuming I had not made the trip), then he mentioned the scenario you just described. But, he says, since I had an AP + EAD and travelled outside the country, and since I did not use it, my status is determined by the I-94 stamping.

BTW, you mentioned a form to fill out. Is it the I-9 Form ? My lawyer has not told me about the need to fill any form.
 
compass said:
Just realized that your H-1 expired already. Well then I hope you can still switch to EAD, fill the form with HR asap, I think they forgive you and may backdate the form making it effective since march 1st.

I am not sure if you can file H-1 extension after H-1 expiration date. I think it is possible only before it...

In any case, you are in status all the time (AOS), just make sure you were not working without authorization since march 1st.
Click to expand...


Yes, the lawyer did mention that typically the extension should be filed before expiration. But that he would still try taking advantage of the additional 10 days in the I-94.

HR is now willing to help (covering the expenses to travel out and back in that option had worked). So i will talk to them about filling out the form and back dating. Thanks !!
 
ccss1 said:
3. And most importantly, am I out of status until the H1-B extension is approved ?
QUOTE]

As far as I remember, you don't have to wait for HIB extension approval. Your status is valid from the day you apply for extension. But I will let someone here confirm that since I have been off H1B for a few years now.
Goodluck
Click to expand...
 
ccss1 said:
Thanks much compass. From your response, there does not seem to be an issue for me.
Unfortunately, the lawyer does not think so. He says that had the H1 expired normally on March 1st (assuming I had not made the trip), then he mentioned the scenario you just described. But, he says, since I had an AP + EAD and travelled outside the country, and since I did not use it, my status is determined by the I-94 stamping.

BTW, you mentioned a form to fill out. Is it the I-9 Form ? My lawyer has not told me about the need to fill any form.
Click to expand...

Again I am not a lawyer but your lawyer's opinion sounds very strange to me.
I think, EAD and AP are not dependent from each other, and your trip does NOT invalidate any of them, in particular, EAD, about this there were many postings.
I am almost sure, your H-1 became invalid on March 1st, those additional 10 days they give you to leave the country, I am not sure you can work during this time. So, maybe it was too late to file extension. And if the extension was NOT timely filed, you do not have a right to continue working for 240 days while waiting for decision on H-1 extension.
So again, my opinion is - you were ALWAYS in status, but maybe worked without authorization since March 1st, so go to HR immediately and try to switch to EAD and fill a new form (I guess yes, this is I-9 form) with your EAD information, maybe they can make it effective since march 1st, this should be possible since your EAD was already valid on March 1st.
This form is important, is is your responsibility to show your EAD and fill the form, if you do have EAD (valid) in your pocket and your H-1 expires - you do NOT switch to EAD automatically!
 
ccss1 said:
But, he says, since I had an AP + EAD and travelled outside the country, and since I did not use it, my status is determined by the I-94 stamping.
Click to expand...

Your status is now determined by the fact that you have a pending I-485, and therefore are in valid status. You have a curiously uninformed attorney - I hope you don't use him for anything important.
 
ccss1 said:
I seem to have got myself into some trouble because of a bad decison and incorrect information from my Company's HR. My H1-B status was expiring on March 1st, 2006 and I have a valid EAD and AP (until October 6, 2006). However, upon return after a trip outside the US on Feb. 15, 2006, I chose to show the H1 papers (instead of advance parole) at the POE. The officer stamped the I-94 until March 11th, 2006 (that is an additonal 10 days after h1 visa expiration date). Then on March 10th my attorney realized that my status in US is expiring and the only options left are :

1. Go immediately to either Canada/Mexico and come back in using advance parole (and basically get a new I-94).
2. File for H1-b extension with USCIS immediately so that the application reaches them at least by Monday, March 13th, 2006.

I tried option 1 and went to the Canadian embassy to seek a Canadian visa but they refused me saying they didn't find the reason to travel to Canada (for a I-94 renewal) good enough.

So lawyer has gone with Option 2 and filed for h1-B extension (beyond 6 years) based on pending I-485.

Questions:
1. Is it not true that in case one has a valid EAD and AP, but still chooses to use valid H1-B upon return from a trip outside USA, that upon expiration of the H1, one automatically switches to AP + EAD and continues to maintain valid status ??
2. Or is the status determined by the choice made at the point of entry ??
3. And most importantly, am I out of status until the H1-B extension is approved ?

In hindsight, had I known the issues involved and been provided better information by Co. HR, I realize that I could just have used the Advance Parole and avoided a lot of hassle and stress.

Please reply because I'm still confused about how it works. I tried to read a lot of forum threads/listing ... but it still doesn't seem very clear.

Thanks !!.
Click to expand...

You have a bad attorney, he costed you unnecessary travel. You are fine. AP or visa is just a travel document to enter into USA. It does not alone consitute one status in USA. What document you are using for employment or stay, will decide your status. One can enter thro AP or visa and still can continue to work in H1B and maintain the H status, as before leaving the USA. Similarly one can enter in H1b visa and next day itself he can work in EAD just by giving up the H status. Also, one can enter into AP or Visa and decided to stay at home with out a work, based on pending 485. In all three events, one is maintaing the legal status.
 
Last edited by a moderator:
Cool :D ...

I let the HR know about I-9. Hopefully they will fix it. At least I'm in status and I read that it is the responsibility of the employer to maintain the I-9 document.
 
ccss1 said:
Cool :D ...

I let the HR know about I-9. Hopefully they will fix it. At least I'm in status and I read that it is the responsibility of the employer to maintain the I-9 document.
Click to expand...

Yes they are supposed to maintain the I-9 form - but it is your responsibility to timely show them your employment authorization (EAD) card...
Anyway, it looks like they will fix it and you are fine!
 
You must log in or register to reply here.
Top