Does re-enter USA with AP invalid H1 status?

[Sreenuuk]

If you don't have valid visa stamping in your passport and re enter to USA on AP will invalid the H1B status? Did any one used AP while on H1B? Please share your experiences.


Thanks

[prince_waiting]

If you don't have valid visa stamping in your passport and re enter to USA on AP will invalid the H1B status? Did any one used AP while on H1B? Please share your experiences.


Thanks

My friend entered the US using AP and had to give up his H1B status. Coming to the next part of your question, anybody with a valid H1B would not use AP to return to the US in the first place. It is always considered a safe bet to maintain your H status as long as possible.

[Sreenuuk]

Thanks :)

[fcres]

My friend entered the US using AP and had to give up his H1B status. Coming to the next part of your question, anybody with a valid H1B would not use AP to return to the US in the first place. It is always considered a safe bet to maintain your H status as long as possible.

Well according to a member nlssubbu he used AP mutiple times and still worked on H1 and renewed it also.
http://immigrationvoice.org/forum/showpost.php?p=134359&postcount=87

[fcres]

My friend entered the US using AP and had to give up his H1B status. Coming to the next part of your question, anybody with a valid H1B would not use AP to return to the US in the first place. It is always considered a safe bet to maintain your H status as long as possible.

Would you please check with your friend why or how he had to give up his H1 status?

[crystal]

What you stated below make more sense to me only when you have not finished your six years on H1B.

Otherwise I dont see any specific use staying on H1-B other than you can travel in and out whenver you want ,once you have valid visa stamped on passport (AP is valid only for an year ) and keeping away from the hassel of renewing EAD every year.

If you finsihed 6 years and in case your I-485 is denied then you need to leave the country even if you on H1B or EAD.
If you not finsihed 6 years and in case your I-485 is denied and you are mainitainng H1B then you can continue stay here for the rest of H1B and re-start the green card process depending on the reason of denial.


It is always considered a safe bet to maintain your H status as long as possible.

[fcres]

If you finsihed 6 years and in case your I-485 is denied then you need to leave the country even if you on H1B or EAD.

I never heard that if your 485 is deined you are out of status if your H1 is over 6 years. Do you have any link which says this?

[abhicyber]

As per the following website I dont see any problem using AP, it does not invalidate your H1B as long as your are with your current employer.

http://www.hooyou.com/advanceparole/h1bv-ap.html

See below:
In the event that the Advance Parole is used by an H-1B visa holder, instead of getting an H-1B visa to re-enter the US, and one resumes employment with the same employer for whom they had previously been authorized to work as an H-1 nonimmigrant without using their EAD, they are in parolee status. However, after being paroled in by using an Advanced Parole, one may work for their current employer with their EAD or change employers with their EAD, one is no longer able to come back to the H-1B status by an H-1B extension or transfer. In that case, they can still lawfully stay in the U.S. during the I-485 pending period.

[crystal]

As far as I know.
i dont have a link,
The reason for H1-B extension over 6 years is beaucse your I-485 is pending (or I-140 is approved and waiting to file I-485). Once I-485 is denied H1-B would autoamtically will be invalid.


I never heard that if your 485 is deined you are out of status if your H1 is over 6 years. Do you have any link which says this?

[prince_waiting]

I asked my friend and he said that he did not renew his H1 voluntarily. He told me that since he used cross chargeability to file his AOS (his wife is born in some middle eastern country), he expects to get his GC in about a years time and did not want to waste money applying for an H1 extension.

Sorry for the confusion I might have caused.

[fcres]

As far as I know.
i dont have a link,
The reason for H1-B extension over 6 years is beaucse your I-485 is pending (or I-140 is approved and waiting to file I-485). Once I-485 is denied H1-B would autoamtically will be invalid.

That is a valid point, but i'm not sure its true. Otherwise why would so many lawyers advice you to try to maintain your H1 status rather than using EAD (even if your 6yr limit is over)? I believe for most of the applicants the 6yr limit is over or will be over very soon.

[serg]

As far as I know.
i dont have a link,
The reason for H1-B extension over 6 years is beaucse your I-485 is pending (or I-140 is approved and waiting to file I-485). Once I-485 is denied H1-B would autoamtically will be invalid.

Who told you that? Have never heard about it. Very interesting. :) I though you have to leave US if you are in AOS status AND 485 got denied. But not H1. And yes, that's why a lot of lawyers recommend to keep H1 status as long as you can, as 'backup' option.

[skv]

As far as I know.
i dont have a link,
The reason for H1-B extension over 6 years is beaucse your I-485 is pending (or I-140 is approved and waiting to file I-485). Once I-485 is denied H1-B would autoamtically will be invalid.


Even if I-140 is not approved or I-485 is denied, you can still file for H-1B one year extension, after completing 6 years term, as long as the employer files petition for you.

If you have an approved I-140, then you're eligible for 3 years extension.

It's always better to have H-1B status as long as you have the Green Card. I'm not saying not to apply for EAD/AP, go it as well.

It's like a backup server, in case system outage. :-)

[fcres]

I asked my friend and he said that he did not renew his H1 voluntarily. He told me that since he used cross chargeability to file his AOS (his wife is born in some middle eastern country), he expects to get his GC in about a years time and did not want to waste money applying for an H1 extension.

Sorry for the confusion I might have caused.

Thank you for the clarification. So far i never read that anybody had to give up their H1(for the same employer) just because they used AP.

[crystal]

I know that part you get one year h1-b extension after 6 years if your labor is filed more than one year ago (meaning you intend to file I-485) but can you tell me what exactly the use being on H1-B after 6 years,once you filed I-485, other than what i stated?

Even if I-140 is not approved or I-485 is denied, you can still file for H-1B one year extension, after completing 6 years term, as long as the employer files petition for you.

If you have an approved I-140, then you're eligible for 3 years extension.

It's always better to have H-1B status as long as you have the Green Card. I'm not saying not to apply for EAD/AP, go it as well.

It's like a backup server, in case system outage. :-)

[gc_chahiye]

That is a valid point, but i'm not sure its true. Otherwise why would so many lawyers advice you to try to maintain your H1 status rather than using EAD (even if your 6yr limit is over)? I believe for most of the applicants the 6yr limit is over or will be over very soon.

right, almost all lawyers/lawyer-websites that I have seen say that irrespective of what happens with your I-485 your H1 will remain valid for the period it was granted for. Seems odd past 6 years, but thats what they say.

The same thing happens for people who had not filed 485 and were changing employers in 7th/8th/9th years of H1 and restarting GC. Using the older LC or I-140 they would get a 1 or 3 year extension with new employer. Then even if the old employer cancelled the LC/I-140 that new H1 remained. This is a gray area, but until now USCIS has not revoked the new H1 when the employer revoked the I-140.

[crystal]

What you stated is valid as long as you did not file I-485 and I am talking about after filing I-485 ( to be specific if you crossed 6 months after I-485 filing after which employer cannot revoke I-140). then what is the use of H1-B?

I am not sure why lawyers are saying like that and any specific reasons why they are saying like that?

Once I-485 is denied as far as I know , you cannot continue on H1-B also if 6 years are crossed

right, almost all lawyers/lawyer-websites that I have seen say that irrespective of what happens with your I-485 your H1 will remain valid for the period it was granted for. Seems odd past 6 years, but thats what they say.

The same thing happens for people who had not filed 485 and were changing employers in 7th/8th/9th years of H1 and restarting GC. Using the older LC or I-140 they would get a 1 or 3 year extension with new employer. Then even if the old employer cancelled the LC/I-140 that new H1 remained. This is a gray area, but until now USCIS has not revoked the new H1 when the employer revoked the I-140.

[skv]

I know that part you get one year h1-b extension after 6 years if your labor is filed more than one year ago but can you tell me what exactly the use being on H1-B after 6 years other than what i stated?


OK. We're we go.

1) If you or your wife's I-485 is denied while residing abroad, you can't entry US, unless you have a valid H-1B or H-4 Visa

2) Until unless you get the Green Card, there is no 100% guarantee of it, USCIS can reject it at any stage due to valid reasons.... So again, your H-1B/H-4 will save you.

3) There is no harm or loss having H1-B status, unless you want to use EAD for another company. You know what, you can still go far H-1B transfer with them.

This is a generic opinion, it may differ on case to case, as people have different priorities.

[skv]

Why am I typing so fast COB, I meant Here we go...... :-)

OK. We're we go.

1) If you or your wife's I-485 is denied while residing abroad, you can't entry US, unless you have a valid H-1B or H-4 Visa

2) Until unless you get the Green Card, there is no 100% guarantee of it, USCIS can reject it at any stage due to valid reasons.... So again, your H-1B/H-4 will save you.

3) There is no harm or loss having H1-B status, unless you want to use EAD for another company. You know what, you can still go far H-1B transfer with them.

This is a generic opinion, it may differ on case to case, as people have different priorities.

[forever]

What you stated is valid as long as you did not file I-485 and I am talking about after filing I-485 ( to be specific if you crossed 6 months after I-485 filing ). then what is the use of H1-B?

If 1-485 is denied for any reasons and if you do not maintain H1B status, your clock as illegal starts immediately. If you maintain H1B status and it is valid for some more time and 485 is denied, your clock as illegal does not start and you'll have some time before you take next course of action. In the second case, your H1B is not invalidated.

[BumbleBee]

Just as an FYI, I used AP to enter back in to USA while I was on valid h1 status. And the time my research concluded that using AP doesn't invalidate active H1B status. Since then, I have gotten another 3 year extension.

My 6 cents ( adjusted for inflation )

BBee

[crystal]

I agree with the illegal clock part ,but are you sure a person can work till his H1-B expires even after denial of I-485 ? I doubt

If 1-485 is denied for any reasons and if you do not maintain H1B status, your clock as illegal starts immediately. If you maintain H1B status and it is valid for some more time and 485 is denied, your clock as illegal does not start and you'll have some time before you take next course of action. In the second case, your H1B is not invalidated.

[crystal]

Ok.My response is below
OK. We're we go.

1) If you or your wife's I-485 is denied while residing abroad, you can't entry US, unless you have a valid H-1B or H-4 Visa

If I-485 for the priamry applicant is denied and i doubt whether he can even re-enter to US using the H1-B if it is over 6 years (whether it is legal?).May be dependent applicants can come on H4 if their I-485 is denied and if primary applciant is on H1-B .But once primary applicat I-485 is approved/denied then dependent have to leave US.

2) Until unless you get the Green Card, there is no 100% guarantee of it, USCIS can reject it at any stage due to valid reasons.... So again, your H-1B/H-4 will save you.

as far as i know , if I-485 is rejected then you cannot continue stay on H1-B if you crossed 6 years

3) There is no harm or loss having H1-B status, unless you want to use EAD for another company. You know what, you can still go far H-1B transfer with them.

I am not saying we should go on EAD. i am trying to see what is the use of mainintng H1B

This is a generic opinion, it may differ on case to case, as people have different priorities.

[irock]

What you stated is valid as long as you did not file I-485 and I am talking about after filing I-485 ( to be specific if you crossed 6 months after I-485 filing after which employer cannot revoke I-140). then what is the use of H1-B?

I am not sure why lawyers are saying like that and any specific reasons why they are saying like that?

Once I-485 is denied as far as I know , you cannot continue on H1-B also if 6 years are crossed

H1 is dual intent. So even 485 is denied and you cross 6 years, if you maintain your H1, you can stay here. That is what lawyers are also saying.
I see your point here. But you should not apply your logic. Should go with the rules. :)

[morchu]

Not being eligible for further extension is not equal to invalidating an already approved extension.

As far as I know.
i dont have a link,
The reason for H1-B extension over 6 years is beaucse your I-485 is pending (or I-140 is approved and waiting to file I-485). Once I-485 is denied H1-B would autoamtically will be invalid.

[crystal]

I am not applying logic.
I want to know the rule .My question is it legal to work till H1-B expiry date ,after 6 years, if I-485 is rejected ? Can you point me to any link on the same if you know? I also dont have any link for what i said.



H1 is dual intent. So even 485 is denied and you cross 6 years, if you maintain your H1, you can stay here. That is what lawyers are also saying.
I see your point here. But you should not apply your logic. Should go with the rules. :)

[crystal]

Do you have any link on that ? there are many things that gets validated and in-validated automatically. i also dont have any link for what I said. But i heard and read that some where. Where i am not sure. Tryign to make sure

Not being eligible for further extension is not equal to invalidating an already approved extension.

[morchu]

Lets forget about the 485. Consider the below example.
1. Person files 140 with companyA, gets approved, in 6thyear.
2. He appy for extension with companyB, based on his currently pending GC and approved I-140 and gets extension for another 3 years.
3. He leaves companyA and joins companyB.
4. CompanyA withdraws his GC petition.

Now, do you think this person is out of status?

I dont think so. I dont see any rule specifically mentioning that he should have a pending petition all the time to have his status. All I see is that at the time of the H1 extension application, he should have either a 1 year pending LC / an approved I-140.

I am not applying logic.
I want to know the rule .My question is it legal to work till H1-B expiry date ,after 6 years, if I-485 is rejected ? Can you point me to any link on the same if you know? I also dont have any link for what i said.

[morchu]

What I am saying is there is NO specific invalidating rules/regulations I see.
If there is no specific rule to invalidate something, it means that it is valid.

Also means I dont have any link.

Do you have any link on that ? there are many things that gets validated and in-validated automatically. i also dont have any link for what I said. But i heard and read that some where. Where i am not sure. Tryign to make sure

[forever]

I agree with the illegal clock part ,but are you sure a person can work till his H1-B expires even after denial of I-485 ? I doubt
Yes. It doesn't make sense. But, H1B is valid till the end date once it is approved no matter what underlying reason is.

[gc_chahiye]

Lets forget about the 485. Consider the below example.
1. Person files 140 with companyA, gets approved, in 6thyear.
2. He appy for extension with companyB, based on his currently pending GC and approved I-140 and gets extension for another 3 years.
3. He leaves companyA and joins companyB.
4. CompanyA withdraws his GC petition.

Now, do you think this person is out of status?

I dont think so. I dont see any rule specifically mentioning that he should have a pending petition all the time to have his status. All I see is that at the time of the H1 extension application, he should have either a 1 year pending LC / an approved I-140.

thats why people say its a gray area. Murthy had addressed this issue in one of her chats and she said something along: "so far USCIS position has been that the H1 extension remains valid for the period it was granted for, even if the underlying 140/LC is rejected/revoked".

As you say there is nothing in the law one way or the other (AC21 is silent on this part, it only talks about eligibility for getting the extension). All it will take is one memo from USCIS to say that if the 140/485 is gone, the H1 is gone that day (or, hopefully clarifying that the H1 will remain valid). Its all upto USCIS interpretation and at this point its favorable (they have not revoked anyone's H1 because the LC/140/485 went)

[crystal]

We are moving away from the point .I am talking about after denial of active I-485 by USCIS ,when you are on H1-B over 6 years.



Lets forget about the 485. Consider the below example.
1. Person files 140 with companyA, gets approved, in 6thyear.
2. He appy for extension with companyB, based on his currently pending GC and approved I-140 and gets extension for another 3 years.
3. He leaves companyA and joins companyB.
4. CompanyA withdraws his GC petition.

Now, do you think this person is out of status?

I dont think so. I dont see any rule specifically mentioning that he should have a pending petition all the time to have his status. All I see is that at the time of the H1 extension application, he should have either a 1 year pending LC / an approved I-140.

[Green.Tech]

Just as an FYI, I used AP to enter back in to USA while I was on valid h1 status. And the time my research concluded that using AP doesn't invalidate active H1B status. Since then, I have gotten another 3 year extension.

My 6 cents ( adjusted for inflation )

BBee

Thanks BBee. That is what I thought. So, even if my H-1B visa has expired but I have a valid H-1B extension, I can re-enter US on AP instead of going for a H-1B stamp and still be able to keep and work on my H-1B status. Correct?

[greencardvow]

Yes even if 485 was denied you can continue on H1B for the period it was originally granted for. The problem can come when you transfer your H1b after 485 denial to some other company or when you have to request further extension of H1B. At this stage since the underlying basis for H1B extension was denied you can't get extension. In this scenario all you have to do is start a new GC process once 485 is denied, then get 140 approved and apply for futher extension. Hope I am clear in my response. So yes maintaining H1 status after 6 years makes sense even if 485 is denied.

We are moving away from the point .I am talking about after denial of active I-485 by USCIS ,when you are on H1-B over 6 years.

[MunnaBhai]

Could you please tell what's the status mentioned in your I-94? H1-B, or Parolee etc. when you used AP to enter US.

Thanks

Just as an FYI, I used AP to enter back in to USA while I was on valid h1 status. And the time my research concluded that using AP doesn't invalidate active H1B status. Since then, I have gotten another 3 year extension.

My 6 cents ( adjusted for inflation )

BBee

[irock]

I am not applying logic.
I want to know the rule .My question is it legal to work till H1-B expiry date ,after 6 years, if I-485 is rejected ? Can you point me to any link on the same if you know? I also dont have any link for what i said.
OK. My lawyer says this. I trust my lawyer. And it seems other lawyers says the same.

H1B is dual intent. So unless there is a rule that clearly says -- if I-485 is rejected H1B after 6 years will be invalidated, H1B is valid until its expiry date.

[crystal]

thanks .
as per your lawyer , there is no such rule right now?

OK. My lawyer says this. I trust my lawyer. And it seems other lawyers says the same.

H1B is dual intent. So unless there is a rule that clearly says -- if I-485 is rejected H1B after 6 years will be invalidated, H1B is valid until its expiry date.

[BumbleBee]

Thanks BBee. That is what I thought. So, even if my H-1B visa has expired but I have a valid H-1B extension, I can re-enter US on AP instead of going for a H-1B stamp and still be able to keep and work on my H-1B status. Correct?

Yes, 100%, thats what is my case and have had no problem. ( One sucessful 3 years h1b extension and one EAD/AP approval after my trip).

Some more readings
http://shusterman.com/cronin51600.html
http://www.immigrationlinks.com/news/news301.htm

at best, its muddy, but so far have worked in applicant's favour.

BBee

[abhicyber]

Yes, 100%, thats what is my case and have had no problem. ( One sucessful 3 years h1b extension and one EAD/AP approval after my trip).

Some more readings
http://shusterman.com/cronin51600.html
http://www.immigrationlinks.com/news/news301.htm

at best, its muddy, but so far have worked in applicant's favour.

BBee

Thanks for the link BumbleBee. What about spouse's H4 stamping? Any problem there? Wife I-485 is not filed.

Thanks in advance.

[irock]

thanks .
as per your lawyer , there is no such rule right now?

:)

For that matter argument sake, I would argue that you should send a signed letter DAILY to USCIS that you intend to keep your H1, itherwise your H1 is invalid. Can you show me a rule which says you don't need to do that to keep your H1 valid? :)

Common. If anybody has valid H1 (after 6 year limit). And there is NO rule saying that is invalid if I-485 is rejected. And lawyers saying H1 is valid even after I-485 is rejected. I would think that H1 is valid until it is expired, unless somebody show me a official rule which states otherwise.

[BumbleBee]

Could you please tell what's the status mentioned in your I-94? H1-B, or Parolee etc. when you used AP to enter US.

Thanks

Parolee 212(d)(3) humanitarian or public interest parole.

But I wasn't and isn't concern about my case as I have maintained both h1b and EAD ever since, given that 212(d)(3) (or whatever other numebers are) can be given/denied on parole officer's discretion.


BBee

[irock]

thanks .
as per your lawyer , there is no such rule right now?

He said even I-485 is rejected, H1B will be still valid until it expires. I didn't ask him to show me the official rule :)

[morchu]

I was trying to show a situation some of us /our friends are familiar with or already have gone through. Also as some other member mentioned here, USCIS can always publish a clarification / press release and take a different stand.

Now the situation I mentioned is similar in the sense that, the conditions which made you eligible for extension were not MAINTAINED by the removal of the PENDING GC petition. In one case it was a 485 rejection, another case it was a withdrawal.


We are moving away from the point .I am talking about after denial of active I-485 by USCIS ,when you are on H1-B over 6 years.

[MunnaBhai]

Thanks a lot. One more question, when you applied to extension, what was the status mentioned on form I-129 Parolee or H1-B


-MB



Parolee 212(d)(3) humanitarian or public interest parole.

But I wasn't and isn't concern about my case as I have maintained both h1b and EAD ever since, given that 212(d)(3) (or whatever other numebers are) can be given/denied on parole officer's discretion.


BBee

[crystal]

The only reason i was asking link was . as I-485 is final stage for petition.
it seems like grey area like what Murthy said.

But i would really love to see one guy whose I-485 denied after 6 years and he re-applied green card again by maintaining H1-B or worked till its expiry :D

:)

For that matter argument sake, I would argue that you should send a signed letter DAILY to USCIS that you intend to keep your H1, itherwise your H1 is invalid. Can you show me a rule which says you don't need to do that to keep your H1 valid? :)

Common. If anybody has valid H1 (after 6 year limit). And there is NO rule saying that is invalid if I-485 is rejected. And lawyers saying H1 is valid even after I-485 is rejected. I would think that H1 is valid until it is expired, unless somebody show me a official rule which states otherwise.

[serg]

thanks .
as per your lawyer , there is no such rule right now?

All right, here it is, folks:
"... a valid H1B can be extended to more than 6 years under two circumstances: 1) A PERM or I-140 application is filed one year before the expiration date of the current H1B, and the case is not denied or withdrew; 2) the I-140 is approved but I-485 is not filed because of unavailability of (http://www.hooyou.com/news/news090606i485.html)

Now, if 485 denied, underlying 140 will be gone too. This means, you will not be able to file for H1B extension after 6-years period soaked off. And yes, you'll be able to stay in US until current H1 status valid.

[BumbleBee]

Thanks a lot. One more question, when you applied to extension, what was the status mentioned on form I-129 Parolee or H1-B
-MB

hmm, i never notice that one, I'll try and check with my lawyer (if he get some to listen to me).

One downside of using AP is the expiry date on I-94,
mine reads Paroled until ( Month, day, year ) which is the end date on AP (max 1 year) while I could have gotten longer I-94 with H1B( 3years).

I wouldn't advise anybody using AP if they are in position to use H1B. (Just collect some w2s, paystubs, employement verification letter, apt lease and you are good to GO ) ;)

BBee

[serg]

I've read somewhere, if you on H1B and entered on AP, it will not invalidate status, but you have to file H1B extension.

[MunnaBhai]

You are right, but using AP saves the hassle of visa stamping.

-MB

hmm, i never notice that one, I'll try and check with my lawyer (if he get some to listen to me).

One downside of using AP is the expiry date on I-94,
mine reads Paroled until ( Month, day, year ) which is the end date on AP (max 1 year) while I could have gotten longer I-94 with H1B( 3years).

I wouldn't advise anybody using AP if they are in position to use H1B. (Just collect some w2s, paystubs, employement verification letter, apt lease and you are good to GO ) ;)

BBee

[irock]

The only reason i was asking link was . as I-485 is final stage for petition.
it seems like grey area like what Murthy said.

But i would really love to see one guy whose I-485 denied after 6 years and he re-applied green card again by maintaining H1-B or worked till its expiry :D
Do you have link to Mulrty's site which says it is gray area.

I searched and found this http://www.murthy.com/chatlogs/chat0707_P.html. Check answer for question "My six years of H1B expired. My I-485 was denied..". This is from July 2003 chat, I'm not sure whether that is still valid.

[BumbleBee]

Thanks for the link BumbleBee. What about spouse's H4 stamping? Any problem there? Wife I-485 is not filed.

Thanks in advance.

There shouldn't be any issue for H4 Visa stamping, all is needed is copy of h4 aproval ( I-797), copy of primary H1b approval, copy of marriage certificate, copy of birth certificate, copy of primary applicant passport(i don't remember if it was necessary or just 'good to have'). (Second time stamping is much easier)

Just in case documents(not required but good to have)
Primary applicant's w2, paystubs copy, lease papers

BumbleBee

[MunnaBhai]

I know, but you have to take appointment, drafts, pictures etc. When you are in India for a limited time, it looks like a hassle. It doesn't matter whether you are stamping H1 or H4.

-MB

There shouldn't be any issue for H4 Visa stamping, all is needed is copy of h4 aproval ( I-797), copy of primary H1b approval, copy of marriage certificate, copy of birth certificate, copy of primary applicant passport(i don't remember if it was necessary or just 'good to have'). (Second time stamping is much easier)

Just in case documents(not required but good to have)
Primary applicant's w2, paystubs copy, lease papers

BumbleBee

[BumbleBee]

Do you have link to Mulrty's site which says it is gray area.

I searched and found this http://www.murthy.com/chatlogs/chat0707_P.html. Check answer for question "My six years of H1B expired. My I-485 was denied..". This is from July 2003 chat, I'm not sure whether that is still valid.

Yes, its still valid. The h1b **Extension** can only be granted if applicant is maintaining a valid non-immigrant status. Now a look at particular scenarios

1. valid h1, I-485 pending, valid EAD
Action---- I-485 denied
Result ----- EAD is generally invalidated at the same time as I-485 denial, so its goner
------ H1b is still valid and good for extension (other terms and condition for h1b apply ), person can continue to work and file for MTR

2. h1 expired , I-485 pending, valid EAD
Action---- I-485 denied
Result ----- EAD is generally invalidated at the same time as I-485 denial, so its goner
------ H1b was already expired so can't be extended. Person is OUT OF STATUS ( deportation order is in the mail ), file MTR and hope for re-opening within 180 days to get benefit under 212(g)(i think!)

BumbleBee

[Canadian_Dream]

Getting H1B extension on "Parolee" status ? Could it be a mistake on part of USCIS? Moment you entered on AP you are on "Parolee" status NOT on H1B status. The terms and condition of each of these I-94 are different including duration of stay. How can your H1B status be extended when you are not in H1B status ( as per I-94) ?
Upon entering on AP as "Parolee" isn't that you have to work on EAD because you are no longer on H1B. Did you ask any other lawyer's suggestion in this regard ? Also, did your H1B extension came with an I-94 if yes what was the end date and status written on it ?


Just as an FYI, I used AP to enter back in to USA while I was on valid h1 status. And the time my research concluded that using AP doesn't invalidate active H1B status. Since then, I have gotten another 3 year extension.

My 6 cents ( adjusted for inflation )

BBee

[serg]

He said even I-485 is rejected, H1B will be still valid until it expires. I didn't ask him to show me the official rule :)

Rejected and Denied are 2 different things tho.

[serg]

Getting H1B extension on "Parolee" status ? Could it be a mistake on part of USCIS? Moment you entered on AP you are on "Parolee" status NOT on H1B status. The terms and condition of each of these I-94 are different including duration of stay. How can your H1B status be extended when you are not in H1B status ( as per I-94) ?
Upon entering on AP as "Parolee" isn't that you have to work on EAD because you are no longer on H1B. Did you ask any other lawyer's suggestion in this regard ? Also, did your H1B extension came with an I-94 if yes what was the end date and status written on it ?

Here you go: http://www.hooyou.com/ead/I-485%20filing%20memo.htm

[nlssubbu]

Getting H1B extension on "Parolee" status ? Could it be a mistake on part of USCIS? Moment you entered on AP you are on "Parolee" status NOT on H1B status. The terms and condition of each of these I-94 are different including duration of stay. How can your H1B status be extended when you are not in H1B status ( as per I-94) ?
Upon entering on AP as "Parolee" isn't that you have to work on EAD because you are no longer on H1B. Did you ask any other lawyer's suggestion in this regard ? Also, did your H1B extension came with an I-94 if yes what was the end date and status written on it ?

No. AP is for the benefit of applicant to enter back to US when 485 is in process. H1B/H4 being duel intent, entering through AP does not invalidate the existing H1B/H4.

H1B/H4 will get invalidated only if you use EAD for job. I told this time and again in this forum and used it like this myself. I would really appreciate, if the moderators make such a thread 'Sticky' so that the same questions need not be answered again and again.

Thanks

[Canadian_Dream]

Whether you are on H1B (or not) is decided by I-94 if your I-94 says parolee you can't be on H1B. To be clear, you use EAD to work it doesn't govern your legal status in the country. Your status is what your I-94 says.
An F1 Student, a refugee, a fiancee of US Citizen or any other beneficairy/derivative of AOS application can use EAD. Your legal status has nothing to do with what document you use to obtain or continue employment.
I am pretty sure that your H1B status cease to exist moment you enter the country on AP and logical thing to do after that is to start working on EAD (because obviously you can't work on H1B as you are NOT on H1B). A new I-9 should be filed and EAD should be used an evidence for employment as opposed to I-797/H1B Visa.



No. AP is for the benefit of applicant to enter back to US when 485 is in process. H1B/H4 being duel intent, entering through AP does not invalidate the existing H1B/H4.

H1B/H4 will get invalidated only if you use EAD for job. I told this time and again in this forum and used it like this myself. I would really appreciate, if the moderators make such a thread 'Sticky' so that the same questions need not be answered again and again.

Thanks

[morchu]

I am not sure about this.
A 485 denial need not necessarily invalidate an approved I-140 (and underlying LC).

There can be some cases, for example 485 denial based on the non-existence of offered employment / fraud-detection on offered employment etc..., which may lead to invalidation of I-140.

But I am not sure of an automatic invalidation of I-140, on a 485 denial.



Now, if 485 denied, underlying 140 will be gone too. This means, you will not be able to file for H1B extension after 6-years period soaked off. And yes, you'll be able to stay in US until current H1 status valid.

[meg_z]

One downside of using AP is the expiry date on I-94,
mine reads Paroled until ( Month, day, year ) which is the end date on AP (max 1 year) while I could have gotten longer I-94 with H1B( 3years).

BBee

What about the earlier expiration date of I-94 when using AP? I read on immigrationportal that one poster said he/she filed an amendment of H-1 before the expiration date of I-94 based on AP. Is that the same with your case?

In my case, I am getting my AP soon and planning to use it in the near future. My H-1 is good for another two years. So seems like I would get a new I-94 upon returning with an expiration date much earlier than my H1 exporation date. Would very much appreciate your feedbacks. Thanks.

[crystal]

To answer your question
as per the memo

http://shusterman.com/cronin51600.html ( I dont know whether the rules are changed from then)

3. If an H-1 or L-1 nonimmigrant has traveled abroad and was paroled into the United States via advance parole, the alien is accordingly in parole status. Does this interim rule allow him or her to now apply for an extension of nonimmigrant status?


Until the final rule is published, an alien who was an H-1 or L-1 nonimmigrant, but who was paroled pursuant to a grant of advance parole, may apply for an extension of H-1 or L-1 status, if there is a valid and approved petition. If the Service determines the alien's application for an extension of nonimmigrant status, the decision granting such an extension will have the effect of terminating the grant of parole and admitting the alien in the relevant nonimmigrant classification.



Whether you are on H1B (or not) is decided by I-94 if your I-94 says parolee you can't be on H1B. To be clear, you use EAD to work it doesn't govern your legal status in the country. Your status is what your I-94 says.
An F1 Student, a refugee, a fiancee of US Citizen or any other beneficairy/derivative of AOS application can use EAD. Your legal status has nothing to do with what document you use to obtain or continue employment.
I am pretty sure that your H1B status cease to exist moment you enter the country on AP and logical thing to do after that is to start working on EAD (because obviously you can't work on H1B as you are NOT on H1B). A new I-9 should be filed and EAD should be used an evidence for employment as opposed to I-797/H1B Visa.

[pariraj]

What if the H1-B stamping is "rejected" in the native country? Can someone with a rejected H1-B on the passport, enter US using AP? Can immigration officers create any problems at the port of entry?

Thanks,

[dpp]

Incorrect. H1 is dual intent and AP is just for travel. So, you can use AP for travel and then if you have valid H1 approval notice, you can continue working on that with your employer.

Many law firms says this. Please check them.


Whether you are on H1B (or not) is decided by I-94 if your I-94 says parolee you can't be on H1B. To be clear, you use EAD to work it doesn't govern your legal status in the country. Your status is what your I-94 says.
An F1 Student, a refugee, a fiancee of US Citizen or any other beneficairy/derivative of AOS application can use EAD. Your legal status has nothing to do with what document you use to obtain or continue employment.
I am pretty sure that your H1B status cease to exist moment you enter the country on AP and logical thing to do after that is to start working on EAD (because obviously you can't work on H1B as you are NOT on H1B). A new I-9 should be filed and EAD should be used an evidence for employment as opposed to I-797/H1B Visa.

[dpp]

It didn't matter to use AP. IO cannot deny the entry to US, unless he sees any other issues with you.


What if the H1-B stamping is "rejected" in the native country? Can someone with a rejected H1-B on the passport, enter US using AP? Can immigration officers create any problems at the port of entry?

Thanks,

[SR2610]

Guys,

It's been discussed in so many threads on so many forums, using AP will NOT void your H1. I used AP in my last trip to home country and still continuing on H1...

-SR

[fcres]

Guys,

It's been discussed in so many threads on so many forums, using AP will NOT void your H1. I used AP in my last trip to home country and still continuing on H1...

-SR

I was waiting for Bumblebee to answer it, but i will ask you too.

Since your new I94 has the expiry date of AP (say Mar 2008), and if your H1 has a much later expiry date (say Mar 2009), do you have to do anything to amend the H1 like a previous poster posted?

[morchu]

Yes. You HAVE TO amend the H1 petition, before the expiration of your current I-94.

You might have been granted "Extension of Stay" as well as "Authorization for Employment" till Mar 2009, via I797 of H1B.
But the "Extension of Stay" part gets void, once you re-enter USA. After that the new I-94 determines the Authorized Stay. But the "Authorization for Employment" part of H1B is still valid. Still you have to amend at least for the "extension of stay" part.

I was waiting for Bumblebee to answer it, but i will ask you too.

Since your new I94 has the expiry date of AP (say Mar 2008), and if your H1 has a much later expiry date (say Mar 2009), do you have to do anything to amend the H1 like a previous poster posted?

[pariraj]

Guys,

It's been discussed in so many threads on so many forums, using AP will NOT void your H1. I used AP in my last trip to home country and still continuing on H1...

-SR


What does it mean when you have an H1-B approval notice and your H1-B stamping (actual visa stamp) gets rejected in India? Doesn't it mean that H1-B is void? In that case, can I re-enter US using AP and then give my employer my EAD and start working on that?

Now this is the question I have been asking everywhere but I don't seem to get a straight answer. Please advise.

Thanks,

[fcres]

Yes. You HAVE TO amend the H1 petition, before the expiration of your current I-94.

Thank you. Just to clarify, amendment is not extension, right? So after amendment the expiry date will be the same as the current H1 extension, isn't it?

[javadeveloper]

I was waiting for Bumblebee to answer it, but i will ask you too.

Since your new I94 has the expiry date of AP (say Mar 2008), and if your H1 has a much later expiry date (say Mar 2009), do you have to do anything to amend the H1 like a previous poster posted?

Good question , someone please answer it

[morchu]

As I mentioned before, you can either "extend your stay" (till Mar 2009 in the example), or extend your stay as well as H1 employment (till March 2008+ 3 years if you have approved I-140.. and affected by country quota's).

Now I am not sure whether you gain something by just filing "extension of stay for H1B" (in your terms amendment with same I94 date - Mar 2009). Isn't the filing fee and procedures all the same? Or is it just the I-539?

Thank you. Just to clarify, amendment is not extension, right? So after amendment the expiry date will be the same as the current H1 extension, isn't it?

[SR2610]

If you have valid AP why you want to go for H1 renewal? I am not sure what happens in that case when stamping get's rejected and you will have valid AP.

I am not sure about Amendment though, I have my H1 valid until March 2009. I am thinking as long as I keep my AP current(get it renewed every year), I no need to worry about H1 status.



What does it mean when you have an H1-B approval notice and your H1-B stamping (actual visa stamp) gets rejected in India? Doesn't it mean that H1-B is void? In that case, can I re-enter US using AP and then give my employer my EAD and start working on that?

Now this is the question I have been asking everywhere but I don't seem to get a straight answer. Please advise.

Thanks,

[morchu]

Be careful here. A H1B-visa rejection doesnt necessarily invalidate your H1B authorization for employment. So technically you can enter in AP and continue in H1B and file an amendment/extension as mentioned in this thread.

But be careful. If you were rejected a H1B-Visa from consulate, there is a good chance that you were violating some conditions of H1B. If continue to be in H1 status, you are REQUIRED to obey the conditions of your H1B employment.

What does it mean when you have an H1-B approval notice and your H1-B stamping (actual visa stamp) gets rejected in India? Doesn't it mean that H1-B is void? In that case, can I re-enter US using AP and then give my employer my EAD and start working on that?

Now this is the question I have been asking everywhere but I don't seem to get a straight answer. Please advise.

Thanks,

[rakesh_one]

After 6 months of 485, while about 2 years of H1 remaining, suppose, one changes employer, uses EAD.

Then 485 gets denied. He/She leaves the country.

Now can he/she transfer H1 to someother company get 2 years and attend consultate and come back to US ?

I know some one who did something like that. In this case, H1 sponsoring company, 485 company and H1 renew company are same. The person had to leave the country, but back in US with the old H1 after getting stamped in consulate.

In such scenarios, it may not be a bad idea to switch to EAD and save H1 years.

Any commnets ?

[fcres]

After 6 months of 485, while about 2 years of H1 remaining, suppose, one changes employer, uses EAD.

Then 485 gets denied. He/She leaves the country.

Now can he/she transfer H1 to someother company get 2 years and attend consultate and come back to US ?

I know some one who did something like that. In this case, H1 sponsoring company, 485 company and H1 renew company are same. The person had to leave the country, but back in US with the old H1 after getting stamped in consulate.

In such scenarios, it may not be a bad idea to switch to EAD and save H1 years.

Any commnets ?

Was it the remaining 2yrs of his initial 6yr limit?