Urgent help -- Travel with AP while H4 extension (and spouse's H1 extension) pending

[RadGS]

Hi,
I was searching forums but so far confused with minor variations to my specific case. Please provide information know to you:

Me and my wife have AP and EAD pending I140 and I485 approvals. FP also done.

We also have our H1 and H4 in extension process and we do not have valid visa stampings. Our H1/H4 and stampings expired in Jan 2008 and applied for extension before expiry.

My wife need to travel immediately to India for couple of weeks mid April. We do not expect extended H1/H4 to be available before travel. My questions are:
1) I believe she should be able to enter US with AP without any issue. Is my assumption correct?
2) Would her travel impact our H1/H4 extension process in any manner? Would it impact use of H1/H4 once they are approved?
3) Would her travel impact our I140/I485 approval process in any manner?

We would like to continue to use H1/H4 till my I485 is approved and have GC in hand.

Thank you,

[grupak]

Originally Posted by RadGS

Hi,
I was searching forums but so far confused with minor variations to my specific case. Please provide information know to you:

Me and my wife have AP and EAD pending I140 and I485 approvals. FP also done.

We also have our H1 and H4 in extension process and we do not have valid visa stampings. Our H1/H4 and stampings expired in Jan 2008 and applied for extension before expiry.

My wife need to travel immediately to India for couple of weeks mid April. We do not expect extended H1/H4 to be available before travel. My questions are:
1) I believe she should be able to enter US with AP without any issue. Is my assumption correct?
2) Would her travel impact our H1/H4 extension process in any manner? Would it impact use of H1/H4 once they are approved?
3) Would her travel impact our I140/I485 approval process in any manner?

We would like to continue to use H1/H4 till my I485 is approved and have GC in hand.

Thank you,

Not a lawyer so can't be completely sure.

First off, I don't think your wife's travel will have any impact on your H1 or green card.

I was in a similar situation where my H1B was pending and I needed to travel. Had AP and EAD in hand. I couldn't get a clear answer. Talking to lawyers, and checking on internet: My GC application would not have been impacted. And most likely the pending H1B would not be impacted because I was not doing a change of status. I worried about having two I-94 numbers but was told that probably it doesn't matter. The last action of USCIS holds.

So, if your wife's latest I-94 has AP then her status is AP, and will need to change status again if she wants to be on H4. If latest I-94 is the H4 then status is H4. Overall it shouldn't matter.

While I was going through this debate of what to do, I got my H1B approved. So can't tell you any first hand experience.

Summary: Since your wife is already on H4, pending H4 application is not a change of status, and H4 is dual intent, leaving the US before H4 is approved doesn't mean abandonment of H4 application, and will not impact GC. When she comes back her status will depend on the status stamped on the latest I-94 in hand.

That's the extent of my knowledge.

[RadGS]

This is helpful in boosting some confidence. Thanks for this quick reply.

[bekugc]

hi grupak,

you mentioned - "The last action of USCIS holds. "

does this mean if h1 extension approval arrives after the person returned back on AP (new i94 with AOS onit) , then his latest i94 will be H1??

thx

[grupak]

Originally Posted by bekugc

hi grupak,

you mentioned - "The last action of USCIS holds. "

does this mean if h1 extension approval arrives after the person returned back on AP (new i94 with AOS onit) , then his latest i94 will be H1??

thx

Yes, thats what I understood from my inquires. The latest I-94 (if USCIS sends one) will determine your status.

[shaifu]

Hi grupak
I am in a similar situation.I and my wife hv EAD and AP in hand.My H1 and her H4 expired in feb this year.We applied for our H visa extensions in oct 2007 with a receipt date of Oct 30th 2007 at vermont cntr.Thinking that our visa extensions will come in 3-4 months we booked tickets for a trip to india for may 15 to attend an importnt family gathering.But unfortunately our visa extensions hvnt come thru yet although my dates for H1 are current now and i might get my visa extn,but my wife's category I 539 is still being processed for Aug 13th 2007.My questions are

1) will my wifes H4 be approved for extnsion along with my H1 or she has to wait till her category becomes current
2) if we travel on AP what will happen to the period after feb 08 to the date we travel as i hv not used my EAD to work.will we get out of status
3) can we maintain our H statuses if we return on AP
4) will uscis continue to process our H1 and H4 even if we travel without the extn hvng been approved
5) since our I94s expiry date shows feb2nd 08 should we still hand them over at the time of departure
Please advise.will really appreciate ur valuable suggestins and other suggestions by learned gururs

[pal351]

Hi Grupak
I went to india On Jan 18th came back On feb 18th using AP. But My employer applied for H1B Extension on Jan 9th.

I did not get approved my H1B Extension yet.

My Q: in the port of Entry they gave me i 94 as parolee .
Do I need to apply any ammendment to change my status from Parolee to Non immigrant.

Please share your exepertise and Experiences.

Thanks in advance.

Raj.

[grupak]

Some answers inline in blue. Just my experience, not a lawyer.

Originally Posted by shaifu

Hi grupak
I ham in a similar situation.I and my wife hv EAD and AP in hand.My H1 and her H4 expired in feb this year.We applied for our H visa extensions in oct 2007 with a receipt date of Oct 30th 2007 at vermont cntr.Thinking that our visa extensions will come in 3-4 months we booked tickets for a trip to india for may 15 to attend an importnt family gathering.But unfortunately our visa extensions hvnt come thru yet although my dates for H1 are current now and i might get my visa extn,but my wife's category I 539 is still being processed for Aug 13th 2007.My questions are

1) will my wifes H4 be approved for extnsion along with my H1 or she has to wait till her category becomes current
The H1 and H4 are handled separately from my experience.
2) if we travel on AP what will happen to the period after feb 08 to the date we travel as i hv not used my EAD to work.will we get out of status
You are still in H1B status for 240 days until USCIS decides. The great thing is because you applied for I-485, you will not be out of status but AOS if H1B fails.
3) can we maintain our H statuses if we return on AP
I have heard different things. My lawyer thinks one can.
4) will uscis continue to process our H1 and H4 even if we travel without the extn hvng been approved
I have been told yes but its all gray area
5) since our I94s expiry date shows feb2nd 08 should we still hand them over at the time of departure
Please advise.
This you don't have to worry about. You have applied for I-485, applied for H1 ext. So, you are in status.

USCIS works a lot by memos... so its hard to dig up the exact law. Good luck.

[grupak]

Originally Posted by pal351

Hi Grupak
I went to india On Jan 18th came back On feb 18th using AP. But My employer applied for H1B Extension on Jan 9th.

I did not get approved my H1B Extension yet.

My Q: in the port of Entry they gave me i 94 as parolee .
Do I need to apply any ammendment to change my status from Parolee to Non immigrant.

Please share your exepertise and Experiences.

Thanks in advance.

Raj.

Raj, I was facing a similar experience but my H1B ext arrived before I traveled. What I wrote to RadGS is all I know. The important thing is that no matter what your GC is safe. My lawyer thinks that you can continue working on H1B without needing to amend anything, others say different.

The confusion is because I think the H1B document typically does two things in one: (1) Work authorization and (2) status. So, in some sense it makes sense that with an approved H1B ext and an AP I-94, one is in AOS status and can still work using approved H1B because H1B is dual intent. And in future when you file for extension, USCIS gives you a H1B I-94. All of this is speculation at this point as I didn't find a clear FAQ or rule to cover this.

I really don't know what to suggest.

[shaifu]

Hi Grupak
Thanks a ton for your valuable advise.Can u please give me some advise on the following

1) If I get my H1 ext before i travel but my wife doesnt,then can she still apply for H4 visa at the delhi consulate based on my H1.
2)alternately if i get my visa stamped and my wife doesnt then will she have any problems returning on AP and will it effect her GC application.
Please advise

[glub]

I have the same problem, but my company's lawyers - a prominent firm - say that as long as I was in the US when the extension application was filed , I should be fine...

[shaifu]

Hi glub
thanks.Are u planning to travel too.

[grupak]

shaifu, I am not a lawyer so take my words with a grain of salt.

Originally Posted by shaifu

Hi Grupak
Thanks a ton for your valuable advise.Can u please give me some advise on the following

1) If I get my H1 ext before i travel but my wife doesnt,then can she still apply for H4 visa at the delhi consulate based on my H1.

To get H4 visa, only approved H1 is required. This I know from experience. So, don't see a problem there. H4 applicant will need the usual documents (search on the net)
2)alternately if i get my visa stamped and my wife doesnt then will she have any problems returning on AP and will it effect her GC application.
Your wife's GC will not be effected as far as I know. In the odd chance that her GC is denied (for other reasons), she will have to file for a change of status to H4 based on your H1 to be in-status.
Please advise

As far as I know there are a lot of benefits that comes from applying for I-485. You do not accrue out of status while I-485 is pending. That's one of the reason IV has included the ability to apply for I-485 (after certain threshold like I-140) even when PD is not current, in the administrative fix. Everyone should get involved actively and help IV achieve its goal. It will help current and future immigrants.

[grupak]

Originally Posted by glub

I have the same problem, but my company's lawyers - a prominent firm - say that as long as I was in the US when the extension application was filed , I should be fine...

Yeah, that's what I was told... as long as it is not a change of status but an extension then leaving US before approval, does not mean abandoning the application. But none of this should effect the GC I was told, thats the most important thing.

[noman]

I had my 7th year extension pending (H1 & H4), I-140 approved and this was my lawyers recommendation:
1. I can travel as far as I have one of these approved a H1 or I-140 before I leave.(just to be safe not that its required)
2. If the extension is approved while I was gone I will be back as a payrolle, but can keep working on extended H1.
3. If not I have to use EAD to work.

I came back on the 24th FEB and my h1 got approved on 22nd FEB, no issues at all at the POE and my family came back on the 28th FEB all fine. Got I-94 with a payrolle status for one year.
I haven't gotten an answer from my lawyer about the two I-94 issue or how to extend the latest one year I-94.
If you have any other question please ask, I will be delighted to answer.
Good Luck.