Using AP will loose H1 status

kumarvalluri

Registered Users (C)
Hi ,

I am Planning to visit India using Advanced parole.

I was told that using AP means i will be loosing the H1 status

and i have to use EAD when i come back to US.

Please advise me I am concerned with loosing H1 status.

Thanks for all your help.

Kumarvalluri
 
I am planning to visit India using Advanced parole.

I was told that using AP means i will be loosing the H1 status
----- who told you? If you use AP and have NOT used EAD and you enter on AP AND continue working with the same employer who filed your latest H1, you are on H1 status and you can also extend H1 status
and i have to use EAD when i come back to US.
----- If working for the same employer who filed latest H1, EAD is not needed you can work on H1
Take the print out and read all:

http://www.immigrationlinks.com/news/news301.htm
http://www.murthy.com/UDnewins.html
http://www.vkblaw.com/news/fivehundredtwentyfive.htm

http://www.shusterman.com/h1memo500.html
http://www.shusterman.com/hl-99regs.html
 
Ginnu,

Thanks a million for your help in clarifieng on the usage of AP

I am really thrilled to know from you through those links

about using AP will let you keep H1 status.

In fact my attorney told me that i will loose my H1 status
if i use my AP.

That was really shocking to me , Thanks once again to you
and to to the forum.

Kumar valluri
 
I know there are memos that talk about 'Use of AP will not void H/L Status'

But it is not still very clear. Many Attroneys do not agree that use of AP does not void H/L Status.

In my opinion, the most conservative approach is either stick to H/L status or use AP and EAD.
 
I missed another point too.

If you use AP your I-94 will be stamped till the expiry of current AP.

You can get back to H/L status, if you apply for H/L extension and it is approved. In this case you will get new I-94 based on the extension.

This is my understanding based my experience with Immigration Attroneys.


--Not a legal advice.
 
nnarayanus is right, and on behalf of your intertest your lawer is 100% right since he/she get the payment from you and he/she connot afford any risk, neither you.

All the contents the links pointing to are memos which means they are not laws and different officers may have different intereptions. Actually, those memos are really confusing and we all see tons of different versions.

--Not a legal advice
 
Actually it is quite clear. Using AP does NOT void your H-1B status. I am normally extremely conservative but in this area the USCIS position is very clear.
 
How good is the H1 if I dont have I94!!!

Assume I reenter the country today using AP which has 6 months left.
I get a new I94 that expires 6 months from now.

Meanwhile I also have a valid H1 that is good for 2 more years. I had to submit the I94 on the H1 notice of action while leaving the country.

Now unless I get an H1 extention or transfer, I dont have an I94 that is valid for 2 years.

Rasmeek
 
Well come back Attorney Jim Mills

We were missing you. Your very valued inputs always helped us to understand the immigration process. Please keep coming
 
All I can tell you is that USCIS has made its position absolutely clear that using AP does NOT invalidate the H-1B. I agree with you intellectually but USCIS has been clear and has repeatedly stated their position. Yes, they can change their position but until they do the matter is clear.
 
Follow Up and Clarification

Here's the ultra-conservative approach and I think it may be the safest way to look at it.

If he enters the U.S. under Advance Parole, he does not terminate his H status, but enters as a Parolee. His H status is said to be dormant and the Parolee status overrides the H. This means that if he enters as a parolee, but then seeks to revive the H status, he would have to depart the U.S. and reenter using his H (if such status is still valid). He can file for an extension of H-1 status and that would revive the H-1 status.

Considering detailed questions like this is one of the reasons that I started to post, and continue posting, to this forum. It seems as if the above would have no effect on the H-1 holder as a practical matter but could have a considerable effect on H-4 holders. This is particularly true since the Service will not consider a paroled adjustment applicant's failure to obtain a separate employment authorization document to mean that the paroled adjustment applicant engaged in unauthorized employment by working for the H-1 or L-1 employer between the date of his or her parole and the date to be specified in the final rule. I see no difference between the H-1 holder who is paroled into the US and the H-1 holder who enters on an H-1 other than the notation at entry. The H-1 holder can work for the H-1 sponsor without obtaining EAD and can extend his/her H-1B status. There is some question as to the effect on H-4 and USCIS/BCIS/INS has made no pronouncement on this.

My advice on something like this is to always speak to your immigration attorney for specific advice since this area is complex, fact specific, and as previously discussed, subject to change.
 
Mr. Mills, long time no see ..

Happy New Year,

What happens a person who has H1 Extension and AP are filed
and both pending, leaves the US ?

Can he come back after H1 is approved and visa is granted ?

What happens if cancels the filed AP before leaving the US hoping to return after H1 Extensions pending, is approved ?

Will cancelling AP have any bad effect on 485(AOS) or return ?


Latest I131( AP) filing instructions say, one need not file AP if there is valid H1 or H4' .
 
What happens a person who has H1 Extension and AP are filed
and both pending, leaves the US ?
------ H1 extension and AP both may be approved, H1 extension has nothing to do with AP application both are different petitions
Can he come back after H1 is approved and visa is granted?
------ YES, if he is out of US when H1 extension is approved then if he has valid visa stamp he can come to US on that Visa and show H1 extension approval at POE . if Visa expired while out of US get H1 visa based on H1 extension approval.

What happens if cancels the filed AP before leaving the US hoping to return after H1 Extensions pending, is approved?
---- No need to cancel AP, H1 extension has nothing to do with AP

Will canceling AP have any bad effect on 485(AOS) or return?
----- No bad effect, but why you want to cancel/withdraw AP? One can have AP and H1 extension it is up to you what to use. Generally if you have H1visa you use H1 visa to enter


Latest I131( AP) filing instructions say, one need not file AP if there is valid H1 or H4'
---- If you have H1 or H4 visa you can enter on H1or H4 visa status AP is not needed. Many apply for AP as back up if any problem for visa stamps in home country
 
Top