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Work/Travel options after 485 : H1 Versus EAD/AP Work/Travel options after 485 : H1 Versus EAD/AP. Comparison between keeping H1 versus forfeiting H1 and using EAD/AP after 485 filing.

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  #46 (permalink)  
Old 10-20-2007, 09:50 AM
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I am aware we would be admitted as "Parolee" when we use AP when coming in, Can someone explain is there any expiry date for this "Parolee" Status, I have my h1 till 2010 and Visa Stamped is expired, no plans to get my visa revalidation ....
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  #47 (permalink)  
Old 10-20-2007, 02:02 PM
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dingudi,
I think you can, but I would definitley consult with an attorney.

Last year I travelled out and used AP to reenter. I had an H1B extension too. Labor , 140, AOS, H1B all are from same employer. I consulted with
lawyer before I travelled. His advise was.

1) Re entering AP would not negare H1B as long as
-- You used EAD and switched job without Xferring H1B
-- You worked on EAD part time for another employer.
2) IF you used H1B to re enter your status is Parolee, but you have a valid
H1B status too. ( as long as you have extension not expired). Your present status is Parolee but you can interchange that with H1B. Meaning you can transfer that H1B to another employer or you can extend that H1B to same employer etc etc...

Atty said its all based on Cronyn ( or cornyn ...not sure) memo. It can be changed any time. After all that I got my gc approved 3 months ago.


I strongly recommend to consult an attorny before making any solid decisions.

all the best
babu






Quote:
Originally Posted by willy007 View Post
dingudi,

I don't think you are able to transfer H1 when you are admitted to US as a parolee.

Also, according to BharatPremi, once you come in using AP, it seems that you almost have to use EAD since you can only keep your H1 for a very short time.

However, I doubt that this is the case though. The legal dept from my current employer suggested me to keep my H1, but use AP to travel (I am from the list of countries that only gives 1 year validity for a visa stamp even if the H1 is still valid for 3 years, so it's a hassle). When I asked them about EAD, they prefers me to be on H1. They didn't say anything that within a year of using my AP, I will need to get an EAD.


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  #48 (permalink)  
Old 10-20-2007, 02:59 PM
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Quote:
Originally Posted by sbabunle View Post
dingudi,
I think you can, but I would definitley consult with an attorney.

Last year I travelled out and used AP to reenter. I had an H1B extension too. Labor , 140, AOS, H1B all are from same employer. I consulted with
lawyer before I travelled. His advise was.

1) Re entering AP would not negare H1B as long as
-- You used EAD and switched job without Xferring H1B
-- You worked on EAD part time for another employer.
2) IF you used H1B to re enter your status is Parolee, but you have a valid
H1B status too. ( as long as you have extension not expired). Your present status is Parolee but you can interchange that with H1B. Meaning you can transfer that H1B to another employer or you can extend that H1B to same employer etc etc...

Atty said its all based on Cronyn ( or cornyn ...not sure) memo. It can be changed any time. After all that I got my gc approved 3 months ago.


I strongly recommend to consult an attorny before making any solid decisions.

all the best
babu


Thanks sbabunle. So if I understand you correctly , based on what you said:

You entered on AP , did not have valid H1 visa stamp in PP but your H1 797 was still valid. After entering your I-94 was marked as "Parolee" but you continued your employment with same employer on H1 status. The expiration on your I-94 must have been based on your AP and not on your I-94 date of H1. After that you got H1 extension , but was the extension applied before the expiration date of "Parolee I-94" OR I-94 mentioned in your H1 I-797. I assume this extension was again with the same employer not a different.

Also when you re-enter on AP , you are saying that we can transfer H1 in 8th year to another employer based on copy of approved I-140 after I-1485 has been pending for over 180 days. I have got 3 year extension based on I-140 till 2009 and when I re-enter using AP wouldn't that override my current I-94 expiration of 2009.
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  #49 (permalink)  
Old 10-20-2007, 04:25 PM
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Quote:
Originally Posted by dingudi View Post
Thanks sbabunle. So if I understand you correctly , based on what you said:

You entered on AP , did not have valid H1 visa stamp in PP but your H1 797 was still valid. After entering your I-94 was marked as "Parolee" but you continued your employment with same employer on H1 status. The expiration on your I-94 must have been based on your AP and not on your I-94 date of H1. After that you got H1 extension , but was the extension applied before the expiration date of "Parolee I-94" OR I-94 mentioned in your H1 I-797. I assume this extension was again with the same employer not a different.

Also when you re-enter on AP , you are saying that we can transfer H1 in 8th year to another employer based on copy of approved I-140 after I-1485 has been pending for over 180 days. I have got 3 year extension based on I-140 till 2009 and when I re-enter using AP wouldn't that override my current I-94 expiration of 2009.
Yes, It does override your current I-94 expiration of 2009. But expiration of AP I-94 is not a problem. Please refer the link below

http://www.murthy.com/news/ukadvpar.html
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  #50 (permalink)  
Old 10-20-2007, 05:26 PM
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How does it work for spouse? Spouse has her own H1 (converted from H4 and no visa stamp for H1), wants to travel. Is it advised to get H1 stamped and come back on H1 or come back on AP? Can she transfer her H1 once she gets back or does she have to use EAD to change jobs?

thanks,
don
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  #51 (permalink)  
Old 10-20-2007, 06:12 PM
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Quote:
Originally Posted by JulyFiler View Post
How does it work for spouse? Spouse has her own H1 (converted from H4 and no visa stamp for H1), wants to travel. Is it advised to get H1 stamped and come back on H1 or come back on AP? Can she transfer her H1 once she gets back or does she have to use EAD to change jobs?

thanks,
don

This was my second question in the previous post. basically if spouse uses AP to re-enter , then whether she can continue to work with same employer on H1 and later then transfer H1 on to another emplyer.
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  #52 (permalink)  
Old 10-20-2007, 09:46 PM
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Quote:
Originally Posted by Ramba View Post
I do not know why the people are so confused. It is due to their failure to understand the difference between”status” and “work authorization”. Status provides type of legal authorization to stay in US and work authorization means “legal work permit”. H1B approval notice and EAD cards are work authorization. Your status is determined by how the immigration officer admitted you. It is mentioned in I-94. Once you enter using AP, the immigration officer will admit you as parolee. Once you paroled, your admission into US is as NOT as non-immigrant. So you are not eligible to change your status after admitted as parolee. However, since USCIS authorized the eligibility of work by means of H1B approval before leaving US, you can very well resume your H1B work. For this matter no EAD is required. You are still considered as a parolee due to AOS. Therefore you can not extend (same employer) or change (new employer) the status. You need to use EAD.
Ramba and BharatPremi I may have to disagree with you guys here, I dont think one can work on H1B even if it is with the same employer, if they enter as parolee, dont you think "last-action rule" applies and whether you decide to work with the same employee or different employee your status is parolee. If one wants to work on H1B i think one can file for change of status or file amendment to their existing H1B petition.

This is what Corin Memo says too...
http://www.shusterman.com/cronin51600.html

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

Scenarios

1) With valid H1-B petition, if you enter US on AP, you will be in "Parolee" status until you apply for H1B extension. Once you apply for H1B petition extension, your status changes.

2) With valid H1-B petition, if you enter US on AP, you will be in "Parolee" status. If you want to continue your H1B status, apply for change of status to H1-B. You are in safe hands.

Gray Area

3) With valid H1-B petition, if you enter US on AP, you will be in "Parolee" status. If you Immigration petition is denied (Either 140 or 485), you lost your legal status. Even though you have valid H1-B petition, you are not authorized to work on H1-B until you change your status.

You can leave US, and enter on H1-B status immediately. Because your "Parolee" status is denied, you can't apply for change of status staying in US.
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  #53 (permalink)  
Old 10-25-2007, 04:00 PM
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Default Need Help

Hello There !
I need advice from experts.
Situation:
On 6th year H1-B status( last 3 yrs Visa Stamp expired) till Dec 2007.
I-140 approved
Applied for AOS/EAD( Online card pro. Ordered) /AP


Question:
1. Should I have to go for extension for another 3 yrs if I am not planning to change the employer?
2. What are the likely scenarios for AOS get denied?
3. Can I apply for H1-B extension and leave the country or I have to wait till get the decision of extension?

Please advice.
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  #54 (permalink)  
Old 10-25-2007, 04:53 PM
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Quote:
Originally Posted by legal_la View Post
Ramba and BharatPremi I may have to disagree with you guys here, I dont think one can work on H1B even if it is with the same employer, if they enter as parolee, dont you think "last-action rule" applies and whether you decide to work with the same employee or different employee your status is parolee. If one wants to work on H1B i think one can file for change of status or file amendment to their existing H1B petition.

This is what Corin Memo says too...
http://www.shusterman.com/cronin51600.html

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

Scenarios

1) With valid H1-B petition, if you enter US on AP, you will be in "Parolee" status until you apply for H1B extension. Once you apply for H1B petition extension, your status changes.

2) With valid H1-B petition, if you enter US on AP, you will be in "Parolee" status. If you want to continue your H1B status, apply for change of status to H1-B. You are in safe hands.

Gray Area

3) With valid H1-B petition, if you enter US on AP, you will be in "Parolee" status. If you Immigration petition is denied (Either 140 or 485), you lost your legal status. Even though you have valid H1-B petition, you are not authorized to work on H1-B until you change your status.

You can leave US, and enter on H1-B status immediately. Because your "Parolee" status is denied, you can't apply for change of status staying in US.

I understand that confusion. Please read Q:3 and its answer in Cornin's memo.
It is talking about having H1 extension "after entered as Parolee". Now you can take extension based on "valid and approved petition". Now what is "valid and approved petition"? It is 1-129 petition filed by your employer in past for H1 visa. In other words as long as you join same H1 employer after entered as parolee you can have H1 extension. Now this is meant for the persons whose H1 stamp expired ia passport (hence wanted to use AP) and did not file for H1 extension (For whatever reason , like 2 months valid H1 while leaving uSA for outside country). But what about the persons who have already filed H1 extension and got approval prior to travel out?. Their H1 limit will be valid and they do not have file another unnecessary extension (As it is already extended and approved). Only thing what is different is that I used to belive H1 extension limit should have truncated to AP limit but according to this memo, AP grant will be terminated, in other words youwill not be on parolee status as soon as USCIS terminate AP grant. Now joining other employers are concerned, I believe you can not join another employer right after coming back to USA as a parolee as new employer will not have "valid and approved I-129 petition" and AP grant will not be terminated at that point (So parolee status on) but once AP grant terminated as you started to work on H1 hence non immigrant status will be on and logically then one should be able to switch to another h1 employer. Any legal professonal, advise-opinion please?
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  #55 (permalink)  
Old 10-29-2007, 11:51 PM
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Kindly lemme know if these conclusions are valid :

1) As long as you DON'T get the visa stamped in your passport a 3 year extension (obtained after getting I-140 approved) gets truncated to the expiry date of AP I-94.

2) After entering on AP with a valid but "unstamped" H1 visa you are allowed to work for the "company" till the H1's validity period.

Quick queries :

a) Now is this "company" H1 holding or GC sponsoring ? I did a future employment thing so my H1 holding and GC sponsoring are two different companies.

b) Once the H1's validity is up, which company can do the H1 extension ?. H1 holding or GC sponsoring ?

c) What about H4 extension ? Is it possible at all ?. I read on some forum that someone's wife's H4 extension got denied after she entered on AP without getting her H4 stamped. The reason mentioned was "you can't do H4 extension from Parolee status".

I believe Cronin memo talks only H1/L1 and not about H4/L2. If that's the case, then can one first file for H1 extension and once that's available can we try for H4 extension ?.

Thanx in advance !

-Gctex
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  #56 (permalink)  
Old 10-30-2007, 04:28 PM
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Default traveling using AP

I am currently on valid H1B with visa expired last year and I am traveling to India on AP. Could someone please provide me the list of documents I need to carry while traveling abroad using AP? Do I need to carry H1 papers, Employment letter etc..?

Could someone please response with your experience?
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  #57 (permalink)  
Old 10-30-2007, 04:54 PM
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Default 3 copies of original AP

I am a July 2nd filer and my AP got approved a week back and I got 3 original copies of AP. Why did they send 3 copies? Does this mean I can travel only 3 times and I need to renew it after that. This sounds like a stupid question to me, but still asking
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  #58 (permalink)  
Old 10-30-2007, 06:06 PM
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My situation is

H1 valid till 2010, stamping expired by 2006.

Got EAD waiting for AP.

I have asked my company lawyer, can i reenter using AP and still be on the H1B. He mentioned that it is a GRAY area.. To be on safer side suggested to get H1B stamping and re-enter using H1B.

After reading all these posts i am also under the same impression that in deed it is a Gray area. So i think whoever got valid 797 better get a VISA stamping before re-entering US(regardless you are going to work for the same employer or not).

Since H1B is dual intent you will not HAVE any problem at all for your 485 processing.

Having Valid 797 gives you flexibility to change employer.
AC21 provides you the flexibility to continue the 485 processing.

Hope i am correct.
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  #59 (permalink)  
Old 10-31-2007, 11:33 AM
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I don't think the aspect you mentioned is grey area anymore. Several people and attornies have confirmed that you can still maintain valid H1 status even after using AP.



Quote:
Originally Posted by Jerrome View Post
My situation is

H1 valid till 2010, stamping expired by 2006.

Got EAD waiting for AP.

I have asked my company lawyer, can i reenter using AP and still be on the H1B. He mentioned that it is a GRAY area.. To be on safer side suggested to get H1B stamping and re-enter using H1B.

After reading all these posts i am also under the same impression that in deed it is a Gray area. So i think whoever got valid 797 better get a VISA stamping before re-entering US(regardless you are going to work for the same employer or not).

Since H1B is dual intent you will not HAVE any problem at all for your 485 processing.

Having Valid 797 gives you flexibility to change employer.
AC21 provides you the flexibility to continue the 485 processing.

Hope i am correct.
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  #60 (permalink)  
Old 10-31-2007, 11:54 AM
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True. H1 isn't gray anymore. Now what about H4 guys ?. Our H1/H4 expires in May 2008. We'll qualify for a 3 year extension (based on approved I-140) within a month.

We are planning to travel abroad next week, come back on AP since we don't want to get H1/H4 stamped coz that would be valid only till May 2008, file for a 3 year H1 extension thereby simulataneously changing the status from "Parolee" to "H1" (as per Cronin memo).

Now what about H4 ?. Can status be changed from "Parolee" to "H4" this way ?
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