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. Yes you can try and apply for H1 visa, as long as you have continuous and valid H1 . In the application there are Qs that ask about your GC process, be truthful and answer them

2. Yes You can use AP as a backup. Perfect scenario, no issues

3. If H1 is rejected, you have to use EAD- If h1 is deferred (like need more documentation etc.) your status is iffy. There are many who argue that you have to be on EAD from then on. I disagree.

4. Personal choice and convenience. Answer this question: Why do you want to avoid using AP?

5. That is one advice I wont personally give. But there are doomsdayers and there are doomsdayers.
 
Hi Jaxen
thanks for your comments.
The reason I was trying to avoid AP, was before I have heard from almost everyone that even thought AP allows you to re-enter, there can still be no gurantees. I know that even entering on H1 is not guranteed, but AP has more chances of having problems at the port of entry.
I am just being paranoid, I guess.
 
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