Valid H1-B without the visa stamp and travel. Please help

G

guju

Registered Users (C)
Hello everyone,

I see that lot of people have asked parts of my questions, but it is difficult to compile an accurate answer, so I thought that I will lay down my scenario and hope to get some input from people with smiliar situation. I would also appreciate if the attornies reply to this.

My employer filled my H1-B (expires in March 2004). I don't have H1-B stamped on my passport. (The only visa stamp on my passport is my F-1 Visa). Then back in December 2002, my employer filled for my AOS (Labor certificate was approved under RIR). My I-140 has approved in March, and now I have filled for EAD and AP.

My questions are:

1. After I get my AP, I would like to go to my home country. Can I apply at the US Consulate there for an H1-B Stamp (non-immigrant visa) on my passport? (Even thought I am already in process of getting an immigrant visa). Is there any problem for me to go to the consulate for a non-immigrant visa while i am in process of getting an immigrant visa? (I think Green Card is an immigrant visa)

2. Now lets consider that for any un-seen reason my application for the H1 VISA stamp is rejected, then can i still come back to USA using my AP? What potential issues and ramifications do I have at the port of entry? (The immigration officer will see that I had applied for H1-B and was rejected)

3. I came back using my AP, and with a rejected H1-B visa, and if I continue working with the same employer, will I still stay on H1 Status or will I be considered as parolled, and I will require EAD. (I know that in the case of comming back with AP and having a valid H1-B visa, and working for the same employer will allow me to stay on H1-B, but what if I had tried to apply for a VISA and was rejected)

4. Is it more advisable to not apply for H1-B Visa at the consulate and just come back using AP?

5. Is it more advisable that I should not go, and just wait for I-485 to be approved?

Most questions on the forum and faq address certain parts, but as everyone knows the sometimes the applications of laws change completely even if there is a minor twist in the situation, so I would appreciate if I can get advice, comments, concerns on my questions.

Thank you in advance!

Regards
 
1. Technicaly speaking you can apply for an H1B at a consulate since you're status is that of H1. There is one concern. When applying for an H1 you will be asked if you've applied for immigration and in your case the answer is yes. This may be grounds for denying you an H1 since you're entry to the US is to immigrate, not for a temporary stay (which is what an H1 is). In some countries (Bangladesh for example, which is where I'm from), the US embassy is known to routinely deny H1B visa stamps to people with everything in order. Remember, they have as much accountability as BCIS, and they don't even have to give you a reason. I think the situation would depend on your country and how the embassy treats applicants.

Not sure on the other questions. I know once you start using EAD you no longer have H1 status, but I don't know if that applies to AP as well.

rgds,
sadiq
 
I guess your best bet would be to use AP instead of applying for H1 visa. These days US embassies are rejecting H1 visa and they ask you for so many documents which are very difficult to produce while you are in your home country.

For applying visa you have to answer whether you have filed for immigrant visa or not and answering "yes" may deny your H1 visa. Its always better not to have any visa denial to be in safe side.

PLEASE CONSULT A LAWYER FOR THIS.
 
Originally posted by sadiq
1. Technicaly speaking you can apply for an H1B at a consulate since you're status is that of H1. There is one concern. When applying for an H1 you will be asked if you've applied for immigration and in your case the answer is yes. This may be grounds for denying you an H1 since you're entry to the US is to immigrate, not for a temporary stay (which is what an H1 is). In some countries (Bangladesh for example, which is where I'm from), the US embassy is known to routinely deny H1B visa stamps to people with everything in order. Remember, they have as much accountability as BCIS, and they don't even have to give you a reason. I think the situation would depend on your country and how the embassy treats applicants.

Not sure on the other questions. I know once you start using EAD you no longer have H1 status, but I don't know if that applies to AP as well.

rgds,
sadiq
Click to expand...
Just an added note that H1 cannot be denied solely because of any immigrant intent. H1 is a dual intent visa and immigration law allows H1 applicants to have immigrant intent. The other visa that allows dual intent is L1.
 
You need to make up your mind

about whether you want to return on an H1 or on advance parole.

1. If you decide to use the advance parole route to re-enter the US and have a valid AP document, your status would change to a 'parolee' and you would lose your H1 status. In that case, in order to continue to work, you would need an EAD.

2. If you decide to use the H1 route to re-enter, you would need an H1 visa stamp in order to re-enter. The H1 visa stamp can be obtained either in your home country or also within the US (check out the state department web site for how to obtain the visa). However the process could take a fair amount of time. I personally went out of the US after the expiration of my earlier H1B visa stamp, got a new visa stamp outside the US, and re-entered the US without any problems. However, I do not know what the current situation with regard to issuing fresh H1 visas is. In any case, you should allow for a fair amount of time for the issuance of the visa in your home country also (consult the web site of the state department or the US consulate in your home country for approximate timing).

As an added aside, my lawyer recommended extending one's H1 status as long as possible before going to other kinds of statuses.

This is intended only as guidance. Do consult a competent lawyer and take an informed decision based on his/her advice.
 
I take that back

On further research it appears that you may not be able to obtain an H1 visa within the US; according to information on the state department web site, an H1 visa can be 'revalidated' but a fresh visa can only be issued by a consulate. Sorry about that.

That narrows your options to the AP or trying to get an H1 visa at a US consulate in your home country (from your screen name it is my guess it is probably India).
 
Thanks for all the input, I really appreciate it.
I do know that H1 status has immigration intent, and so I don't think (I will need to cinfirm this with an attorney) that the consulate will reject my H1 based on my 485 filling. However, it is possible that they can still reject my visa based on that or for any other reason.
Now what will happen when i try to enter US with AP and a rejected Visa, I know that legally I can still get in US on AP, but what potential problems can i face at the port of entry.
I am also positive that if i re-enter on AP, and i still work for the same employer, I am still maintaining H1 status, however my concern is if I can still be on H1 status if I have a rejected H1 visa application.
 
Once you reenter on AP, you are a parolee and not a H1B worker.and therefore you will need EAD to continue your work. Take your EAD with AP and you are safe
 
I am not sure

you would have a valid H1 status if you re-enter on an advance parole. PLEASE ask a lawyer before you do anything. It is my understanding that once you use an AP to re-enter, your status is that of an applicant for adjustment of status to permanent residence, that you need an EAD to work and consequently you are no longer on an H1.
 
After using AP, if you are working for the original H1B petition employer, then you are maintaining H1B status. You do not need to provide EAD. This is in Murthy's website. Just dont have the link now but if you search you will find it.
 
I think you will lose your H-1B "status" once you leave the country. In order to get back in, you need a H-1B visa.

Since you have AP, you don't have any problems getting back in. But, since you don't have a H-1B visa to get back in, you won't have a H-1B status.

I must have missed why you are trying to get a H-1B visa. With your EAD and AP, I don't see why you need a H-1B visa.
 
The reason I am trying to stay on H1-B as long as I can is that if for any reason my I-485 is denied, I can still stay on valid status in this country and continue working as H1 (I always assume the worse case scenario and try to work from there, kinda comes with being a sofware developer ):D
 
Let me construct another scenario. You have both H1B visa (passport not stamped) and EAD. You have working at 2 places based on the the EAD card. One job with your sponsor and other somewhere else. Does this mean you have lost your H1B status. If so, if you go to a consulate to get an H1 visa stamped how are they going to know that you are not on H1B.

RD 12/26
FP 3/30
RFE reply recd 6/24
AD Who Knows
 
Gonecase

Correct me if I am wrong but Once one used EAD that is it the H1b status is history. You need AP to travel.
 
Guju has created a very imaginative scenario. Its really interesting how can one play with INS, but its like playing with fire.

You lose H1b Status only if u use EAD. Using AP to re-enter does not revoke your H1B Status. You'll find many postings about that.

What if you go home, come back on AP, and keep your H1B Status? Can you?

Or When you apply for H1B, they cant reject you that you will not come back, H1B is a dual intent visa, but they may keep your passport for a security check (for an year maybe), what would you do then?
 
You mean to say that when I apply for H1, it is possible that the consulate in India will not return my passoport and keep it with themselve for an year?
I have never heard of this before. Then again anything is possible.
I am sure the consulate has to return your passport because you may need it to travel to some other country.
They will put a rejected stamp, and that is my concern. I believe that even with the rejected stamp, I can still use AP to get in, but what issues can i potentially face at the port of entry.
I also know that i don't need an EAD if I re-enter us and continue working for the same employer who filled my H1. Any lawyer can confirm this, but again my concern is what will my status be if my Visa is rejected. The consulate cannot change my status in US, they can only reject my visa. If I would not go to the cosulate and come back on AP, then I would still be on H1, so does the rejected Visa make any change?
 
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