Using H1 while AP is pending? Please help

P

pxd

Registered Users (C)
My AP is pending at VSC (since Jan20). I have a valid I-797 (H1 classification) but the visa stamp in my passport has expired. My I-140 has been approved but I-485 has been pending since Mar, 2003.

I need to travel to India (family emergency). Is it advisable to use I-797 to travel (and obtain a visa stamp in the New Delhi consulate) in this situation? What are the risks? If my AP is approved while I am in India, can I use it for reentry?
 
You can apply at the American Embassy for H-1 Visa stamp. You are allowed to travel on H-1 as long as it is valid. However, please allow sufficient time as they may take few days to send the passport etc!!!

You can use the dropbox option, but you'll need to take an appointment.

Usually, getting the stamp for H-1B second time is easier than the first one and it's quicker.

If your AP does get approved, you can always have your lawyer send that to you in India.
 
Thanks tufan. I cannot use the drop-box option since my visa stamp expired > 12 months ago. So I am most worried about the prospect of interviewing with a...let's just say, unnice ,unfriendly consulate officer. (Although my papers and everything else is in order). Is this fear unjustified?
 
Is that the new thing if your stamp has expired over 12 months then you have to appear for an interview? Where did you hear that?

Even if you have to appear for an interview then don't worry too much. you have a valid approved petition. the only problem is that you will have to gather plenty of paper work.


Your fear is very well justified.
I guess you don't know my story. The reason i didnot go to India in Feb-04, because of the same fear that you have. I don't even have AP/EAD. Secondly i am in the final stages of my processing.

Although i had my H-1B stamped 3 imes Via drop box in past 3 years. There was no problems. But for some reason i did not feel comfortable this time and i end up getting RFE in April. Had i gone to India i would have delayed my GC further.

I am almost ready for 8th year h-1B extension if my GC does not come in a month. Also... i did not want to pay money for the stamp, which will be valid for only couple of months.

Therefore, if it's something very URGENT, family emergency you need not worry and you should go.
 
Check out this link. It states that you are okay to travel on H-1B if your I-485 is pending.....................


http://uscis.gov/graphics/services/emergency/index.htm

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Advance Parole
Most aliens who have pending applications for immigration benefits or for changes in nonimmigrant status need Advance Parole to re-enter the U.S. after traveling abroad. Aliens applying for advance parole on the basis of a pending application for adjustment of status must be approved for advance parole prior to leaving the United States in order to avoid the termination of their pending application for adjustment. Note: this does not apply to aliens who have applied to adjust to permanent resident status and who maintain H-1B (Specialty Worker) or L-1 (Intracompany Transferee) status, or their dependents, who have applied to adjust to permanent resident status and who have valid H-1B or L status and valid visas, V nonimmigrants who have a valid V nonimmigrant visa, are in valid V nonimmigrant status and have or obtain a valid V nonimmigrant visa before applying for readmission to the US, and K-3/4 nonimmigrants who have applied to adjust to permanent resident status and who have a valid K-3/4 nonimmigrant visa, are in valid K-3/4 nonimmigrant status and have or obtain a valid K-3/4 nonimmigrant visa before applying for readmission to the US.
Aliens in the United States should, prior to departure, obtain Advance Parole in order to re-enter the United States after travel abroad if they have:

Filed an application for adjustment of status but have not received a decision from the USCIS;
Hold refugee or asylee status and intend to depart temporarily to apply for a U.S. immigrant visa in Canada; and/or
An emergent personal or bona fide reason to travel temporarily abroad. Applicants who are the beneficiary of a Private bill and Applicants who are under deportation proceedings must file to the Department of Homeland Security, 425 I Street, NW, ATTN: Parole and Humanitarian Assistance Branch, Washington, DC 20536
 
Thanks again tufan. I really appreciate your taking the time to respond to my questions.

One of the conditions for dropbox eligibility (from ttsvisas.com , the drop-box provider in Delhi) is as follows:

--You are renewing or replacing a visa of the same category provided the previous visa has not been expired for more than twelve months (i.e.,365 days).
 
Pxd, you are welcome anytime!

I am sort of confused because my friend's wife went last month and she had H-4 stamped via drop box. Her Visa had already expired. (I mean, if the Visa is not expired, why would anyone apply for a new one in the first place when they can travel on the old visa??????).

You might want to email TTVisa's website,they get back to in couple of days.

Also, You might want to confirm this with your lawyer as it does not make sense,unless this is the new rule.

I got my passport stamped 3 times and my previous Visa had expired.

Strange!!!!:confused:


Ya.. there could be complications if one travels while AP is pending, only if you intend to use that AP!!! It has to be approved while you are in the country. However, if you travel on H1-B and then come back and still your AP is not approved you are OK, becasue you'll be using your H1-B to come back. Even if you call the 800# they will tell you don't leave until AP is approved, however they don't know that you have a valid H-1B. When they answer your question they are assuming that you are on EAD.
 
pxd,

just to append to my message. i was myself curious... therefore, when i check the ttvise a website...

if you choose that none (option NO) of the requirements apply to you it still qualifies you for the drop box. it does not tell you that you don't qualify. Moreover, if you fill the required fields, i'll ask you for your H-1B, WAC# etc!!!!

I think what you read is for, B1/B2 (Visitor) related visa, not for H-1B who already has approved petition.
 
Hi Tufan, the very same screens (prompting for dropbox eligibility, H1b, WAC #, etc) are also presented when you select the "US Embassy/Consulate Appointment" link from ttsvisas.com home page. So, I guess we won't really know until the registration is complete (because at least then the site should give directions regarding what needs to be done; interview or drop box). If anyone else knows "TheTruth", could you please let us know?

Pingpong, thanks a lot for that link. I followed the embedded link ("AP Question") as well. As Poongunranar and Rolando68 have indicated there could be difficulties trying to obtain a H1 (Non-immigrant) visa stamp while having an intent to immigrate (evidenced by the filing of I-140, 485). Also leaving a pending (non-renewal) AP may be considered abandonment of the AP and may have deleterious effects on the I-485. Is this your understanding as well?
 
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