Valid status or not ?

C

ccss1

Registered Users (C)
I seem to have got myself into some trouble because of a bad decison and incorrect/incomplete information from my Company's HR. My H1-B status was expiring on March 1st, 2006 and I have a valid EAD and AP (until October 6, 2006). However, upon return from a trip outside the US on Feb. 15, 2006, I chose to show the H1 papers (instead of advance parole) at the POE. The officer stamped the I-94 until March 11th, 2006 (that is an additonal 10 days after h1 visa expiration date). Then on March 10th my attorney realized that my status in US is expiring and the only options left are :

1. Go immediately to either Canada/Mexico and come back in using advance parole (and basically get a new I-94).
2. File for H1-b extension with USCIS immediately so that the application reaches them at least by Monday, March 13th, 2006.

I tried option 1 and went to the Canadian embassy to seek a Canadian visa but they refused me saying they didn't find the reason to travel to Canada (for a I-94 renewal) good enough.

So lawyer has gone with Option 2 and filed for h1-B extension (beyond 6 years) based on pending I-485.

Questions:
1. Is it not true that in case one has a valid EAD and AP, but still chooses to use valid H1-B upon return from a trip outside USA, that upon expiration of the H1, one automatically switches to AP + EAD and continues to maintain valid status ??
2. Or is the status determined by the choice made at the point of entry ??
3. And most importantly, am I out of status until the H1-B extension is approved ?
4. Does it affect my GC / pending I-485 in any way ?

In hindsight, had I known the issues involved and been provided better information by Co. HR, I realize that I could just have used the Advance Parole and avoided a lot of hassle and stress.

Please reply because I'm still confused about how all this works and stressed out. I tried to read a lot of forum threads/listings ... but it still doesn't seem very clear.

Thanks !!.
 
I am no guru but here is my impression:

You can either be EAD/AP or on H-1.

Now it is up to you to decide what you want to use.

If you want to stay on H-1, H-1 extension is the way to go.
you did the right thing.

If you want to use EAD/AP then you can file form I-9 with your employer to switch to EAD in which case it doesn't matter what your I-94 says.

dinks
 
Thanks dinks2006.

I'm glad to know that everything is fine and that there is no issue.
But still not sure why the attorney is insisting that I may be out of status because the I-94 (I got using h1 docs at POE) is expired and therefore the need to file for extension immediately. Well .... ??

But the key for me was to feel comfortable that there is not even a single day out of status and that it does not affect the GC process (given that it has been a long painful wait thus far ...... and still waiting at I-485 stage).
 
Well technically it is not timely.
The h1 expired on March 1st, 2006. I-94 was valid till March 11th, 2006. The application for extension was prepared and sent on Friday, March 10th, 2006. And today I confirmed that it was received at the USCIS office on March 13th, 2006.

And since it was not timely, I was all the more concerned that in case USCIS rejects the application, that I should not be out of status. And it sounds like, since I do have a valid EAD + AP, I am fine and never was out of status either on march 11th, from a stay within the US perspective or from a legal employment perspective on March 1st.
 
Also I am surprised that your lawyer didn't suggest the option 3.

3. File I-9 with employer to switch to EAD.

But he suggested a more complex Option 1 -- going to Canada and using AP! Either there is something wrong in my understanding or the lawyer is incompetent.

dinks
 
That is correct. I am surprised too. Following the replies in this forum I have informed my HR and asked to follow up with lawyer about I-9. I guess both HR and attorney forgot about I-9 and obviously I had no clue (otherwise I would have suggested it) rather than go through so much stress or spend almost the entire day on Friday at such short notice, at the Canadian consulate.
 
I think perhaps you are confusing between having EAD and using it. Unless you file I-9 form you haven't used it and you are not EAD.

I don't think you automatically (without filing I-9 form with your employer) switch to EAD/AP status even if you have EAD.
 
Yes, that is true. I assumed it happens automatically.

I will work to fix the I-9 form ASAP. Hopefully, that will put a close to my issue and also it is not a case of being "out of status".

Thanks for your replies.
 
dinks2006 said:
I think perhaps you are confusing between having EAD and using it. Unless you file I-9 form you haven't used it and you are not EAD.
Click to expand...

Filing I-9 and going on EAD are not related, Even if does not file the I-9 still he will on EAD since his earlier authorization got expired. It is company's responsibility to check whether employee is authorized to work or not.

Moreover you should not file new I-9. It is filed only first time you join the company. You need to amend the I-9. Check the I-9 instructions.
 
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