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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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  #1 (permalink)  
Old 10-11-2007, 01:04 PM
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gps001 can only hope to improve
Default Problems associated in using Advance Parole for re-entry (instead of a visa stamp)

-I have my H1-B valid until 2010, but the visa stamping expired.
-I applied for I-485/EAD/AP. Got EAD card and AP document. I don't intend to use EAD at all, until unless absolutely necessary.
-I intend to travel outside US, and return back using the AP.
-I don't want to get my visa stamped, as its a hassle, and getting an visa appointment is a hassle as well.

My questions:
1. If I travel outside US and return, and use the Advance Parole at the port of entry, what are the restrictions on my H1-B status?
2. Is using the AP, same as having the visa stamping (although its for a limited period)?
3. My H1-B will be in 6th year in 2009. Can I extend it beyond that to be on H1-B beyond 6th year, based on pending I-485 (when I use AP)?
4. Can I change jobs on H1-B (to a different company).
5. I heard that, at the port of entry, the I-94 card is stamped as PAROLEE. When I transfer my H1 to a different company, and produce the I-94 (with Parolee) on it, would it cause a problem?
6. How early can we apply for the renewal of the advance parole? Say, if my AP expires Oct 15th, 2008, can I send an application in April?


Any other restrictions, problems associated with using Advance Parole, when I intend to be on H1-B (and not use EAD)?
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  #2 (permalink)  
Old 10-11-2007, 01:20 PM
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Default Good questions...

See the posting titled "10/11/2007: H-1B 485 Travelers: To Travel on H-1B or Advance Parole, That is the Question" on Mathew Oh's site for at least some of the answers...
http://www.immigration-law.com/Canada.html
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  #3 (permalink)  
Old 10-11-2007, 01:27 PM
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Default

An one liner for many of your questions: when you use your AP and/or EAD, you forfeit your H1B (and H4 for that matter) status and automatically becomes a parolee (full fledged on AOS pending status). it is upto you to keep your papers valid as per your travel and employment timelines. AP and EAD are exclusive for AOS pending status and cannot be used in combination with H1B

Quote:
Originally Posted by gps001 View Post
-I have my H1-B valid until 2010, but the visa stamping expired.
-I applied for I-485/EAD/AP. Got EAD card and AP document. I don't intend to use EAD at all, until unless absolutely necessary.
-I intend to travel outside US, and return back using the AP.
-I don't want to get my visa stamped, as its a hassle, and getting an visa appointment is a hassle as well.

My questions:
1. If I travel outside US and return, and use the Advance Parole at the port of entry, what are the restrictions on my H1-B status?
2. Is using the AP, same as having the visa stamping (although its for a limited period)?
3. My H1-B will be in 6th year in 2009. Can I extend it beyond that to be on H1-B beyond 6th year, based on pending I-485 (when I use AP)?
4. Can I change jobs on H1-B (to a different company).
5. I heard that, at the port of entry, the I-94 card is stamped as PAROLEE. When I transfer my H1 to a different company, and produce the I-94 (with Parolee) on it, would it cause a problem?
6. How early can we apply for the renewal of the advance parole? Say, if my AP expires Oct 15th, 2008, can I send an application in April?


Any other restrictions, problems associated with using Advance Parole, when I intend to be on H1-B (and not use EAD)?
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  #4 (permalink)  
Old 10-11-2007, 01:38 PM
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Quote:
Originally Posted by gg_ny View Post
An one liner for many of your questions: when you use your AP and/or EAD, you forfeit your H1B (and H4 for that matter) status and automatically becomes a parolee (full fledged on AOS pending status). it is upto you to keep your papers valid as per your travel and employment timelines. AP and EAD are exclusive for AOS pending status and cannot be used in combination with H1B

I do not agree with the above quote

You can travel on AP and still use your valid H1B approved petition to continue on H1 status. Travelling on AP does not forfeit/Invalidate you H1B status.

But using EAD does forfeit/invalidate your H1B status.

Last edited by Tshelar; 10-11-2007 at 01:41 PM.
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Old 10-11-2007, 01:45 PM
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Default humble request

Guys
Please do not answer any question unless you are sure and have a reliable source of information. Just posting replies on hearsay defeats the purpose of these forums...

If you got bitten by the bug to post replies ( maybe to become a senior member ) just reply "I don't know"






Quote:
Originally Posted by gg_ny View Post
An one liner for many of your questions: when you use your AP and/or EAD, you forfeit your H1B (and H4 for that matter) status and automatically becomes a parolee (full fledged on AOS pending status). it is upto you to keep your papers valid as per your travel and employment timelines. AP and EAD are exclusive for AOS pending status and cannot be used in combination with H1B
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  #6 (permalink)  
Old 10-11-2007, 01:51 PM
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Default

Quote:
Originally Posted by gg_ny View Post
An one liner for many of your questions: when you use your AP and/or EAD, you forfeit your H1B (and H4 for that matter) status and automatically becomes a parolee (full fledged on AOS pending status). it is upto you to keep your papers valid as per your travel and employment timelines. AP and EAD are exclusive for AOS pending status and cannot be used in combination with H1B
Please don't provide incorrect info on the forum. Only reply if you are sure. The info that you provided is not true. One can re-enter the country on AP and still keep working on H-1B.
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Old 10-11-2007, 01:53 PM
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Default Check out the memo

http://www.immigrationlinks.com/news/news301.htm

http://www.immigration-law.com/Multinational.html

http://www.murthy.com/news/UDnewins.html

http://www.shusterman.com/hlmemo500.html
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Old 10-11-2007, 01:56 PM
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Default

1. If an H-1 or L-1 nonimmigrant has filed for adjustment of status under an employment-based preference category that requires an offer of employment in the United States, does the interim rule affect the applicant's responsibility to establish his/her intent to work for the petitioning entity?


No. If an H-1 or L-1 has filed for adjustment of status under an employment-based preference category that requires an offer of employment in the United States, the applicant still has the responsibility of establishing his/her intent to work for the petitioning entity after becoming a permanent resident. Neither the rule nor the guidance has modified this requirement or the corresponding requirement that the employer establish his/her intent to employ the applicant.

In the interim rule and initial guidance, the term "open-market employment" was used to mean unrestricted access to employment. Applicants with pending applications for adjustment of status are eligible to apply for an employment authorization document (EAD). With an EAD, an alien has access to unrestricted employment, the "open *market". However, if the applicant is adjusting status under an employment-based preference category that requires an offer of employment in the United States, the fact that an applicant is able to work in the open-market does not alter the applicant's responsibility to demonstrate an intent to work for the petitioning employer.

2. If an H-1 or L-1 nonimmigrant or H-4 or L-2 dependent family member obtains an EAD based on their application for adjustment of status but does not use it to obtain employment, is the alien still maintaining his/her nonimmigrant status?

Yes. The fact that an H or L nonimmigrant is granted an EAD does not cause the alien to violate his/her nonimmigrant status. There may be legitimate reasons for an H or L nonimmigrant to apply for an EAD on the basis of a pending application for adjustment of status. However, an H-I or L-1 nonimmigrant will violate his/her nonimmigrant status if s/he uses the EAD to leave the employer listed on the approved 1-129 petition and engage in employment for a separate employer.

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 approves 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.

4. If an H-1 or L-1 nonimmigrant has traveled abroad and reentered the United States via advance parole, the alien is accordingly in parole status. How does the interim rule affect that alien's employment authorization?

A Service memorandum dated August 5, 1997, stated that an "adjustment applicant's otherwise valid and un-expired nonimmigrant employment authorization... is not terminated by his or her temporary departure from the United States, if prior to such departure the applicant obtained advance parole in accordance with 8 CFR 245.2(a)(4)(ii)." The Service intends to clarify this issue in the final rule. Until then, if the alien's H-1 or L-1 employment authorization would not have expired, had the alien not left and returned under advance parole, the Service will not consider a paroled adjustment applicant's failure to obtain a separate employment authorization document to mean that the paroled adjustment applicant engaged in unauthorized employment by working for the H- 1 or L-1 employer between the date of his or her parole and the date to be specified in the final rule.

5. Should an alien returning to the United States from travel abroad who has a valid 1-512 and a valid H-1 or L-1 nonimmigrant visa be paroled in or readmitted in H-1 or L-1 status?

If an alien has a valid H-1or L-1 nonimmigrant visa and is eligible for H-1 or L- 1 nonimmigrant status and also has a valid Form I-512, he or she may be readmitted into H-1 or L-1 status or be paroled into the United States. It is the alien's prerogative to present either document at inspection. However, if an alien presents both a valid H-1 or L-1 nonimmigrant visa and a valid Form I-512, and the alien is eligible for the H-1 or L-1 nonimmigrant classification, the Service should inform the alien that H-1 and L-1 non-immigrants no longer need to use advance parole to preserve pending applications for adjustment of status and should admit the alien in H-1 or L-1 nonimmigrant status. The fact that an alien has applied for advance parole and received Form I-512 does not compel him or her to use the advance parole.

If the alien is not admissible as an H- I or L-I nonimmigrant, then he or she cannot be readmitted as an H- I or L-I nonimmigrant. Instead, such an alien may be paroled into the United States.

6. Is an alien who has a multiple entry I-512 and who has previously been paroled into the United States now eligible for admission as an H-1 or L-1 if he or she is still in possession of a valid H-1 or L-1 visa?

Yes, the alien may be admitted as an H-1 or L-1. However, aliens returning from abroad may only be admitted as an H-1 or L-1 when they have a valid H-1 or L-1 visa (unless visa exempt), remain eligible for H-1 or L-1 classification, and, where there has been a recent change of employer or extension of stay, have evidence of an approved I-129 petition in the form of a Notice of Action, Form I-797, indicating approval or a notation on the nonimmigrant visa indicating the petition number and the employer's name. If they do not meet these criteria, then they use their I-512.
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  #9 (permalink)  
Old 10-11-2007, 01:56 PM
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Default

Quote:
Originally Posted by Tshelar View Post
I do not agree with the above quote

You can travel on AP and still use your valid H1B approved petition to continue on H1 status. Travelling on AP does not forfeit/Invalidate you H1B status.

But using EAD does forfeit/invalidate your H1B status.
thanks, that is what I thought too. Hearing all other contradictory comments just is so confusing.

Anyhow, I have another related question.

After traveling (with expired visa stamp) and re-entering on AP do we need to inform anyone that we would want to maintain H1 or just do nothing....

Thanks

Last edited by pamposh; 10-11-2007 at 02:04 PM.
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  #10 (permalink)  
Old 10-11-2007, 01:57 PM
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gene77 is on a distinguished road
Default My case is opposite to that of gps001

Knowing that maintaining ones H1-B status rids one of using AP during travel and re-entry into the US (caveat being that one posses the original receipt and a valid visa stamp in the passport) – how does travel effect us (if at all) if we never applied for AP to begin with??

Since both me and my wife have valid visas stamped on our passports till Jun 2010 (H1 and H4 respectively), and knowing the rule of H1-B’s ‘dual-intent’ and that travel on H1-B does not constitute abandonment of I-485, we decided not to file for I-131 (AP) applications when we filled our I-485 and I-765. Since then, we have received our I-485 receipt notices and EADs and plan to travel with them on us soon in Nov 07. Does this pose any risk to us?

If absolutely necessary we can still apply for it before departing knowing that we don't need it for re-entry but is that required?

Thank you.
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  #11 (permalink)  
Old 10-11-2007, 02:04 PM
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Default not true per my lawyer

Quote:
Originally Posted by gg_ny View Post
An one liner for many of your questions: when you use your AP and/or EAD, you forfeit your H1B (and H4 for that matter) status and automatically becomes a parolee (full fledged on AOS pending status). it is upto you to keep your papers valid as per your travel and employment timelines. AP and EAD are exclusive for AOS pending status and cannot be used in combination with H1B
I was told you my lawyer I can use AP, no stamping required. And you can still apply for H1B extension.
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  #12 (permalink)  
Old 10-11-2007, 02:06 PM
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Default Good one!

'just reply "I don't know"' to become a senior member! LOL!

Quote:
Originally Posted by loudobbs View Post
Guys
Please do not answer any question unless you are sure and have a reliable source of information. Just posting replies on hearsay defeats the purpose of these forums...

If you got bitten by the bug to post replies ( maybe to become a senior member ) just reply "I don't know"

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Old 10-11-2007, 02:36 PM
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Quote:
Originally Posted by gulute View Post
'just reply "I don't know"' to become a senior member! LOL!
I do not give a damn whether or not getting designated as a senior /junior member. Looks like you are really starved for some kind of recognition in life ..Keep shooting all your frustrations to IV and soon you would become a senior pain..err.. member too. If you think there are imbeciles around who post on the forum chasing and smelling ---- of titles, then count yourself one among them. And save your stupid sarcasm to your subordinate or your pet/spouse. If you are frustrated with waiting for GC, show it on someone much closer and visible. I dont need to wait for my GC or hound around the site for picking on somebody's slips to vent out frustrations. watch your words; for most people they come out from a hole on the face and obviously yours ( and loudobbs' too - both real and virtual) don't. Keep hanging around, you may want this kind of vents for many years to come. With this attitude you, I just have two words S---w Y.. Hound around.. 2013 is not far off. BTW, did you get to bark at DC on Sept 18th?

Of course my reply was not completely right because, I realize on hindsight, I had over read the lines that said " not going to get a visa stamp". My slip was interpreting that as not going to have a valid visa. Also, I had mixed up EAD restrictions with AP. In my case, the lawyer had advised me to get a stamp although I had AP. Yes,it was a mistake and sorry, pamposh.

Last edited by gg_ny; 10-11-2007 at 03:03 PM.
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Old 10-11-2007, 02:53 PM
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Default

Quote:
Originally Posted by Tshelar View Post
I do not agree with the above quote

You can travel on AP and still use your valid H1B approved petition to continue on H1 status. Travelling on AP does not forfeit/Invalidate you H1B status.

But using EAD does forfeit/invalidate your H1B status.
This saying is correct!!!
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Old 10-11-2007, 03:15 PM
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gene77 is on a distinguished road
Default Any thoughts gurus?

Quote:
Originally Posted by gene77 View Post
Knowing that maintaining ones H1-B status rids one of using AP during travel and re-entry into the US (caveat being that one posses the original receipt and a valid visa stamp in the passport) – how does travel effect us (if at all) if we never applied for AP to begin with??

Since both me and my wife have valid visas stamped on our passports till Jun 2010 (H1 and H4 respectively), and knowing the rule of H1-B’s ‘dual-intent’ and that travel on H1-B does not constitute abandonment of I-485, we decided not to file for I-131 (AP) applications when we filled our I-485 and I-765. Since then, we have received our I-485 receipt notices and EADs and plan to travel with them on us soon in Nov 07. Does this pose any risk to us?

If absolutely necessary we can still apply for it before departing knowing that we don't need it for re-entry but is that required?

Thank you.
Any thoughts gurus?
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