Does re-enter USA with AP invalid H1 status?

[serg]

Originally Posted by crystal

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]

Originally Posted by 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

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

Originally Posted by BumbleBee

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]

Originally Posted by 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

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]

Originally Posted by abhicyber

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

Originally Posted by BumbleBee

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]

Originally Posted by irock

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 ?

Originally Posted by 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

[serg]

Originally Posted by irock

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]

Originally Posted by 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 ?

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

[nlssubbu]

Originally Posted by 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 ?

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.

Originally Posted by nlssubbu

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.

Originally Posted by serg

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]

Originally Posted by BumbleBee

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.