which one to use: AP or H1B Visa stamp?

E

eb1a-query

Registered Users (C)
Hi all,

I was wondering if anyone knows whether one should use his/her valid H1B visa stamp (working with H1B, not with EAD) or approved AP while reentering in the US. Is there any clear rule? Does using H1B stamp for reentry have any effect on the pending I-485?

Thank you.
 
Last edited by a moderator:
If you are working with H-1B visa and have a valid visa on passport, use that visa to enter. Don't use AP unless you want to use EAD. This is a grey area, but if you have a valid visa to re-enter, just use that.
 
This is what I found from murthy.com (http://www.murthy.com/rumor.html). It is from 2003 and i don't know if anything has changed since then. it says that one is preferred to use H1b stamp.

****************************
Chat User : If someone uses advance parole (AP) during the I-485 stage INS may respond with an RFE or transfer the case to a local INS office. INS does not like people at this stage to use AP. Posted Feb 25, 2003

Attorney Murthy : We have never heard that before. One is legally allowed to enter on the AP or the H1B. If one entered on the AP, then that person is considered to have been paroled into the U.S. and not legally "admitted," which has its own legal consequences. If the I-485 is rejected, for any reason, then the person is no longer in status, but if one entered on the H1B, then one has the backup H1B status. Each status has its own advantages and disadvantages, but INS does not issue an RFE or transfer the case merely by virtue of having traveled on AP.


Rumor : If one has a valid H1B visa from the employer, and is waiting for approval of I -485, s/he must use Advance Parole to travel abroad and reenter. Posted Feb 03, 2003

Clarification : If a person has an H1B petition approval and the H1B visa stamp in the passport which has not yet expired, the advance parole (AP) is not required. There is a potential risk that the employer may withdraw the job offer when the person is traveling abroad. If this occurs, s/he will be stuck abroad and will need to have a new employer file a new H1B petition. There is also a risk that the green card will be approved while the person is out of the country. In this situation, the H1B becomes invalid and generally cannot be used to reenter the U.S. Filing and obtaining the AP enables one to return even if the sponsoring employer decides to revoke or withdraw the H1B petition or the green card is approved while the person is abroad.

**********************
 
Can somebody with valid I797 but not H1 stamped from home country use AP to enter USA but use H1 (based on approved I797) to work (instead of using EAD).
 
mougc, if you enter on your AP, then on your I-94, you do not have anything indicating H1 status anymore, and I know that you need to reinstate your H1 and fix your I-94 for that to happen... This is the standard info that I keep hearing, but I do not have any solid evidence that such information I am telling you is the whole and only truth...
 
mougc said:
Can somebody with valid I797 but not H1 stamped from home country use AP to enter USA but use H1 (based on approved I797) to work (instead of using EAD).
Click to expand...
Well, this is basically what I want to know as well. But according to the murthy.com, if someone uses AP to enter, s/he is no longer 'legally admitted' but 'paroled' and if I-485 is denied, the person is no longer in status as s/he already lost H1B. (this was posted in 2003, so don't know whether rules changed since)

This is also what a lot of members in the I-485 forum is saying. But my company lawyer said otherwise. So I'm confused.
 
yeah my lawyer also said the same thing so I am also confused as I want to avoid the home country consulate visit.

As per lawyer only if EAD used you loose H1. but what I feel is probably after you use AP to enter the country then you later go to the airport at the customs secondary corrections window and get your I-94 updated based on I-797 notice ( I had done a similar thing once as my I-94 was given until the H1 stamping date although my I-797 was valid longer.. so the customs guys changed it to the I-797 date) and continue using H1 instead of EAD. Can somebody confirm this with your lawyers.

Did I confuse you all???
 
Is it any beneficial to use AP for reentry? Using H1B stamping will be a much better option till one gets the actual green card. From what people have opined above and what lawyers say, its more of a problem using AP. Well, there's no other option once you use EAD but if you have H1B status too, i wouldn't use AP.
 
Just to repeat what is said all the time...

If you have the possibility to maintain current your non-immigrant status while you wait for your GC, just do it!

It is much cleaner and less of a burden to live here and travel the world on your H1B. You never know what could happen with your GC process, with the way APs could be treated, or with the overall immigration process. It is definitely worth a visit to the consular offices to get an H1B stamp, even if you could technically come back with an AP without losing your H1B (some argue that even this is in a gray area).

Chris
 
You must log in or register to reply here.
Top