What is her status, gurus please chime in

G

gcwaiter@ric

Registered Users (C)
Gurus, please provide your opinions.

I filed a follow-to-join I485 application for my wife in May 2002. My I485 was approved in July 2002. She got the EAD on June 26, 2002. Then she got a job offer and joined my company and got her H-1B approved in August 2002. We wend out of country and came back in Jan 2003. But she entered US using her AP instead of a H-1B visa. After she came back, she continues to work for the same company. My question now is what her current status is? Is she still on H-1B since she didn't change her employer or is she now a parolee and no longer eligible for her non-immigrant status? She filed the EAD renewal app on 3/10/03. Hopefully it will be approved by 06/25/03. My concern is what if for some reasons her renewal is not approved by then. Will she be able to continue her job using her unexpired H-1B petition?


Thanks a lot.
 
Since she is working for the same employer, she is still on H1B. She can continue to work even if the EAD is not approved.

What puzzles me is why did you apply for H1B when you applied for her I-485 and EAD. Consider yourself lucky the INS approved the H1B, which is a non-immigrant visa whereas you clearly have an intent to migrate. The consequences of which could have been serious..

RD 11/29/03
EAC-02-063-....
 
It is ok to work on H1B, as long as she has not used EAD to work. Adjustees can enter USA on AP, and can still maintain their HIB status.
 
Originally posted by vashi17
Since she is working for the same employer, she is still on H1B. She can continue to work even if the EAD is not approved.

What puzzles me is why did you apply for H1B when you applied for her I-485 and EAD. Consider yourself lucky the INS approved the H1B, which is a non-immigrant visa whereas you clearly have an intent to migrate. The consequences of which could have been serious..

RD 11/29/03
EAC-02-063-....
Click to expand...

Do not post replies if you are not sure. It can be misleading. HIB is a dual intent visa. It is ok to work on HIB even though you have EAD as long as you have not used it.
 
Thanks a lot guys.

She applied EAD/AP by herself, not via the company. My company insisted on getting her H-1B even though they just filed the follow-to-join I-485 for her.
 
gcwaiter@ric

>I filed a follow-to-join I485 application for my wife in May 2002. >My I485 was approved in July 2002. She got the EAD on June >26, 2002. Then she got a job offer and joined my company and >got her H-1B approved in August 2002. We wend out of country >and came back in Jan 2003. But she entered US using her AP >instead of a H-1B visa. After she came back, she continues to >work for the same company. My question now is what her >current status is?

Her status is AOS as along as 485 is not approved.

>Is she still on H-1B since she didn't change her employer or is >she now a parolee and no longer eligible for her non-immigrant >status?

Bottom line is, if she is working for same H1 sponsoring company then H1 is very much valid and she can continue to work on H1. EAD is not required.

>She filed the EAD renewal app on 3/10/03. Hopefully it will be >approved by 06/25/03. My concern is what if for some reasons >her renewal is not approved by then. Will she be able to >continue her job using her unexpired H-1B petition?

Doesn't matter if EAD does not get approved in time as she is under H1. She has to worry only if she changes the company then H1 becomes void and she has to use EAD and fill up employment form called I-9 with new company.

Hope this helps.
 
Missing Point

The INS current records will indicate that she is on AOS, because she used her AP while entering US, not her H1B. If she has used her H1B visa, then there is no doubt about what is said in above mails.

When you use your AP to enter US, can you still work on H1B without any impact on your AOS process?
Can someone address this issue?

- Bob
 
Originally posted by gcwaiter@ric
...she got a job offer and joined my company and got her H-1B approved in August 2002. We wend out of country and came back in Jan 2003. But she entered US using her AP instead of a H-1B visa. After she came back, she continues to work for the same company.
Click to expand...

I have only quoted the relevant portions of your message.

She re-entered the country using AP, not H-1B. She is NOT in H-1B status, and unless she has an EAD, she is WORKING ILLEGALLY. The company may face penalties in case BICE ever does an I-9 audit.

EAD/AP work together. If you use your EAD to work, you need AP to re-enter. If you use AP to enter, you need your EAD to work. If you use either, then the H-1B is toast, but she can re-enter the US using the H-1B and be good again.
 
H1B void

Therealcanadian,

I am not sure if she can use her H1B again?

If you travel on Advance Parole then your H1 is void and you will need EAD to work.

I guess VOID means Invalid... but someone has to thrwo more light on this issue.

~Mad
 
Madman72

I agree with you.

My experience in US based on my lawyer recommendations;

I came to US in 98 on Company A H1-b. I got another H1-b from company B in 98 itself. I didn't join company B immediately. In 99 I went to India and re-entered US on Company A H1-b itself. Subsequently in 2000, I joined company B. Before joining company B, my attorney asked me to go out of the country and comeback on their H1-B. The reason is, whatever the document you show while entering US, will be updated in the INS database as current and all others (your other H1s) will not be active for some reason. So, I went to Canada (Niagara Falls) and on the way back, I asked the INS guy there to give to new I-94, telling him that I changed the company and showed him the H1-b from Company B. I didn't get any visa stamp in Canada. The INS inspector collected my I-94 given at the port of entry in 99 and I-94 attached to my H1-b approval notice from company B and gave me a new I-94. The new I-94 contains the name of my new company on the backside. When I send the copies to my lawyer, she said, Now, the INS will have the records indicating their company as my employer.

Though the case is different here, I thought of writing it because it is synonymus.

- Bob
 
bbbishop

Bob,

quite interesting to read ur case. Your case is not only little different but WAY OUTDATED.

guess there ve been a lot of changes from yeer 2000 up-till date.

If I read your case correctly, I dont think anyone (right now) could enter US with a valid H1B without getting VISA stamped on ur passport.

nothing to offend you, but lets not confuse gcwaiter@ric more...

~Mad
 
bbbishop

Bob,

quite interesting to read ur case. Your case is not only little different but WAY OUTDATED.

guess there ve been a lot of changes from yeer 2000 up-till date.

If I read your case correctly, I dont think anyone (right now) could enter US with a valid H1B without getting VISA stamped on ur passport.

nothing to offend you, but lets not confuse gcwaiter@ric more and get back to the point if H1B is still VALID or NOT.

~Mad
 
Re: bbbishop

Originally posted by Madman72
If I read your case correctly, I dont think anyone (right now) could enter US with a valid H1B without getting VISA stamped on ur passport.
Click to expand...

I do it all the time, but then again as a Canadian I'm visa-exempt. I believe that an H-1B *VISA* for use with company A can be used to re-enter in H-1B status for another company.

You also do not need to re-enter the country if you are switching companies on an H-1B, since your status will not change. Bob's lawyer was being over-cautious.
 
Re: H1B void

Originally posted by Madman72
I am not sure if she can use her H1B again? If you travel on Advance Parole then your H1 is void and you will need EAD to work. I guess VOID means Invalid... but someone has to thrwo more light on this issue.
Click to expand...

There's a difference here. IANAL (I am not a lawyer), so take this with a grain of salt.

Your H-1B is void if you enter in H-1B status and somehow violate that status. Working on an EAD is a violation of H-1B status, so the H-1B is toast but you are not doing anything illegal.

However, the wife did not enter in H-1B status, she was paroled into the United States. Therefore, nothing she can do can violate that H-1B status, since she doesn't have it. (If she doesn't have an EAD, then she's working illegally, but that doesn't impact the H-1B.)

Since the terms of the H-1B haven't been violated, she can re-enter on the H-1 (if the visa stamp hasn't expired) and life will be good again, unless the INS does an I-9 audit and keeps really good records. Odds of that are pretty low.
 
Simple

Chat User : Is my H1B status (expires 2005) valid if I travel on advance parole?

Attorney Murthy : If a person chooses to reenter the U.S. and show the AP rather than the H1B approval notice and the H1B visa stamp, then the person chooses to enter as a parolee and not on the H1B status. Then the person loses the H1B status, unless s/he files an extension with the BCIS again after entry to extend the H1B status.

http://www.murthy.com/chat0331.html
 
Thanks for all your opinions.

For my wife, I guess her status is good anyway. She always has been covered by EAD. Her EAD is good since 06/26/02 and we filed the EAD renewal app on 3/10/03, which is more than 90 days prior to the expiration. So I guess it doesn't matter whether her H-1B is good or not. If the EAD renewal app doesn't get approved by 06/11/03, we can go to the local office to get an iEAD issued on the spot, right?

Any comments?
 
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