Working on H1 after using AP !!

R

Rahul_need_help

Registered Users (C)
Hi Guys,

I guess this issue has been raised earlier but there were no straight answers so I am posting this again:

1. I want to know if a person who has used his AP while returning back from India can maintain the H1 status. I guess the answer is Yes, if we are working for the same emplyer but still do let me know if there are other views on this....

2. My 2nd question is can this person (who used his AP to enter US) transfer his H1 to another company...The person is me and I got the H1 extended since the previous H1 had expired. When I entered US I had an expired Visa and after 15 days I got my extended H1 in the mail from my co....but now I have to leave...

I know one can easily use EAD to work but in this case I am single and I want to maintain H1 status to bring my future spouse in US.

Your feedback would be great guys....

Cheeers

Rahul
wac: 02-077
CSC screwed.....
 
Rahul_need_help,

you guessed right, both questions were raised before and one of them had a definite answer. While you are doing your legwork searching the forum, I shall reiterate summaries :)

1. Parolee can use a valid unexpired H-1B as a work authorization if working for the H-1B company in the same capacity. Mind the difference - such a person no longer is in H-1B status.

2. The answer is not that simple. If you managed to extend your H-1B after you were admitted into the country as Parolee, then your status is no longer a Parolee, but H-1B (you should have received a new I-94 to prove that). Therefore, all bells and whistles of H-1B are available, including portability.

If you are still a Parolee, then (in my opinion) you can not transfer your H-1B to another company, because you are not in H-1B status. The solution would be to regain the H-1B status by temporarily leaving the country (either through southern or northern border) and re-entering using H-1B. You will need a valid, unexpired H-1B stamp in the passport, though.
 
Using AP and working on H1

Hi Bitterman,

Thanks for your reply....

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Parolee can use a valid unexpired H-1B as a work authorization if working for the H-1B company in the same capacity. Mind the difference - such a person no longer is in H-1B status
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Let me clarify my situation a little bit more... I had been to India last yr in Oct 02....My H1 extension had been filed in June 02 which did not come thru till oct when I was leaving...The deal with my employer was that he will send me the extended H1 papers while I will be in India...So My H1 expired in Nov while I was in India and still the H1 didndt come thru.....

I waited in India till Dec 02 and finally I used my AP to enter the country in Jan 03. I entered as Parolee and started working with same employer.. After 15 days of my reaching US I got my H1 extension in the mail which also has an I-94 attached at the bottom... So I am hoping that I am on H1 now... Also I am planning to travel to India with these documents in a month or 2 to get married hopefully (if i get Mrs Right)....

As far as the H1 tranfer is concerned afer using AP...I had spoken to Shelia Murthy sometime back and she says if I have an extended H1 I can transfer....So I hope I can transfer this H1 to a new company ...go to india and get married...an bring spouse on H4.......Sounds TOUGH ..:(...isnt it..but i will take this chance

Rahul
 
Rahul_need_help,

your latter description suggests that you have filed for H-1B extension, then left the country, re-entered it, and then you've got the extension approval. This situation differs from those two I have described earlier. You see, as far as I remember, the majority of "Change of non-immigrant status" applications are usually denied if the applying person leaves the country before a decision is made on his/her case. Extension of non-immigrant status is one of those applications. And yet, your extension of status was granted, despite your absense in the country.

I don't know. I would refrain from using it and go for re-entrance scenario I have described earlier. But, on the other hand, you could try to use H-1B portability using just what you have right now. There is a hidden risk associated with it, though. Your transfer application might come through, but at a later date the INS mistake could be discovered, rendering your H-1B void and you working illegally...

You decide.
 
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