URGENT! using AP while Hx extension is pending

A

asic_chip

Registered Users (C)
Guys,

Need your help urgently! Myself and my spouse have a valid APV/EAD till May, 2004. Our I485 is pending since 25OCT. 2002. Our H status expired on 30Sept. 2003 and we filed for extension in first week of Sept. 2003.

Now my wife has plans to travel to Canada on 12/12. I thought that she should be able to use APV to enter back with out loosing her H status. I run it through my company lawyers and they are of the opinion that:

- if she travels out of the country while H4 application is pending and enters back as paroled, she will loose her H status. Comment?

- due to this, today my company has converted our pending H extension to premium processing, hoping that I can get an approval quickly

- what if she procceds as planned and in her absence, if I receive the approval, I can send it to her and she can enter back based on H4 approval notice (as you can enter back from canada on I94 with in 30days)

I will appreciate your feedback...

ASIC CHIP
 
asic_chip,

in general, it is not advisable for anyone to leave the country while a petition for a non-immigrant document is pending.

- if she travels out of the country while H4 application is pending and enters back as paroled, she will loose her H status. Comment?
Absolutely true. She will re-enter as a parolee. Besides, to be precise on this matter, she actually loses her status upon departure; and regains it upon re-entry.

- due to this, today my company has converted our pending H extension to premium processing, hoping that I can get an approval quickly
It might help, but since the majority of recent H-1B filings were done using premium processing anyway (because the $1,000 scholarship fee was not reinstated in timely fashion)... you get the idea.

- what if she procceds as planned and in her absence, if I receive the approval, I can send it to her and she can enter back based on H4 approval notice (as you can enter back from canada on I94 with in 30days)
Not on an expired I-94, she doesn't. If the H-4 approval will be indeed granted, what she actually will need to do is to go to a US Consulate in Canada and get a new visa stamped in her passport. Then she will be able to re-enter in H-4 status. Going to a US Consulate in Canada is not a simple matter - one needs an appointment in advance.
 
thanks - one more clarification

Thanks BitterMan, I was hoping for a response from you - one clarification though - even though, she does get H4 approval while she is out to Canada, she will enter back as parolee based on AP. Now, she wont be on H4 status - agreed!

However, Since our H visas are expired and my attorney has plans to send our PP to DOS for revalidation after Hx extension-once we do get our visas revalidated, we have plans to go to Euorpe in summer, can we use H1 to re-enter and hence she will be switched back to H4. Is there any issue with this?

All we are trying to do is to maintan her H4 status, just in case if AOS gets rejected, she does not get out of status.

thanks for your help!

Asic Chip
 
asic_chip,

I don't see a problem with your attorney's plan. Your wife may reinstate her H-4 status that way easily (provided that you will be admitted in H-1 status, of course). Hopefully, you will get your visa extension approval soon and send passports to DOS right away. It takes ludicrous amount of time to get passports re-stamped over there...

On a side note, I can only commend your (and/or your attorney's) thoughtfulness in decision of maintaining a non-immigrant status. It's a useful thing.
 
I am really confused. I would rather prefer EAD/AP on H1. H1 has so many restrictions (both on employer and employee) whereas EAD is restrain free permission to work. I would rather save my H1 time just in case I have to go back on H1 if something happens and I don't get 485 approval.

Can someone throw some light on this subject. Why should I use H1 when I have EAD/AP? Only thing I can think of is that EAD and AP requires renewal every year.
 
You said it!

It its only because of repetative renewal process, combined with delays in processing of EAD's/AP's, along with standing in line at 5:30 am that pushes people to maintain H1 status.

The argument for maintaining H1 status if denied for GC is extremely specious. H1 is usually valid only for 6 years. And if you have been denied AOS, why would you want to stay on in this country for an additional year or so? Might as well avoid the long waits for EAD and continous expenditure of money and burn through the H1 while waiting for AOS!
 
You must log in or register to reply here.
Top