Using AD losing H-1b status?

J

jonelee

Registered Users (C)
I am in H-1b status, my F-1 visa has been expeired. Now I filed I140/I485/AD together. I am planning to go back home for visit using AD. Since I haven't applied for EAD yet, am I going to loss my H-1 status if I use AD reentry US? What the best and safest way to do it? I was told it's risky to apply a H-1b visa in my home country. How about I go to local INS office to get a emergency AP?
Thank you in advance for any response.
Jonelee
 
I assume that by "AD" you mean "EAD" - employment authorization document, right?
First off, EAD doesn't give you right to travel - it only authorizes employment. If you want to travel you need to get an AP ( advance parole )
Further, applying for EAD/AP and using them are two independent actions. Just applying for EAD/AP does nothing for your status. If, however, you enter the country on AP or use EAD for employment, you loose you H1-B status, which is as of itself is not a problem, because your AOS will be keeping you in status. The only reason you would want to maintain H1-B status is when you're worried that for some reason your I-485 will be denied.
As far as emergency AP - I think you only qualify for that, if you can prove that there's indeed an emergency, such as a member of your family is not well( god forbid ) and such. I think other than that you will have to file for AP with a SC and wait.
According to your post, you filed I-140 concurrently with I-485. In reality INS will first approve your I-140, and only after that will it establsih your eligibility for EAD/AP. This may take 3-4 months, so be prepared accordingly.
Is your H1-B still valid? If so, why don't you travel and re-enter on H1-B - this will be OK as long as you present your I-485 receipt on re-entry ( this is required to establsih that you havben't abandoned your I-485 ).

Hope this helps
 
I am going to disagree with some of the replies that was made. Here are the clarification:

1. Using advance parole (AP) does not void your H1B. You can use AP to enter USA and still maintain H1B Status.

2. Only using EAD voids your H1B Status. So if you take another job or change your job while on AOS status using the EAD, you loose your H1B status.

3. Applying for AP and EAD does not void your H1B status.

4. Lastly getting EAD /AP has nothing to do with I-140. There are many people there who has received EAD/AP before even got their I-140 approved.

Please make sure you know about these things before replying to anybody.

muntasir
 
Thanks....

Many thanks to GCApplcnt and muntasir, I appreciate your responses very much. Actually I am confused and scared when I see some posts claim that using AP losing H-1b.
 
Jonelee,

Dont be confused and scared of some people who is ignorant about this issue..here everybody is going thru this process only once and it is very easy to make wrong interpretation because of the messy rule they have. Bottomline-using AP will not void your H1B. So go and enjoy your vacation.

muntasir
 
Um.. I normally not push my opinion on anybody, so this post in not an attempt to start an argument with muntasir, but rather to provide additional information to jonelee.
1. This is somewhat controversial issue and I would not take thsi lighly if I were you. There have been somewhat conflicting news on this particular topic and even qouted INS officers and immigration lawyers have been known to say diffent things.
For instance INS memo as of 6/1/00 ( http://www.usvisanews.com/memo985.html ) seems to state that H1-B holder doesn't need EAD to work even if paroled via AP. Several other lawyer-supported web sites seem to say otherwise
( http://www.usvisanews.com/wedquest111401.html - quesion 4 or http://www.immigration-information.com/showthread.php?s=&threadid=1670 ). This is not that straight-forward, and everything may go just dandy, but what if it doesn't?
In any case, even if you have used AP, your will be able to re-enter using H1-B; it's not your visa that gets voided, it's the status while in US.
Do talk to your lawyer about this...
2-3 agreed with muntasir, in fact this is exactly what I said
4. muntasir seems to have good news for us all - if so, I'm trully thrilled.
When INS first introduced concurrent filing of I-140 and I-485, it issued a memo, where it was noted that best judgement will be used to prevent abuse of the program ( that is ineligible alien applying for I-140 and I-485 at the same time and getting benefits of I-485 filer before his I-140 is denied )
The way they intended to do that is not to issue any benefits that adjustees are eligible for ( EAD, AP ) until I-140 deemed "acceptable". Initial interpretation of this was that they would try to approve I-140 before issuing EAD/AP. The also promised to issue EAD/AP no later than 90 days after filing. They may have changed their policy since then and not wait for I-140 apprvoval before issuing EAD/AP. If so, then great, but from what I have heard obtaining EAD/AP still takes longer for concurrent filers than for those with approved I-140.
Hope this helps
 
jonelee

One person in this same forum has extended the H1-b after using advance parole (this year) without any problem. I have forgotten the link.
 
You must log in or register to reply here.
Top