12/21/2013 12:28:06 AM
EAD/AP approved, I-485 pending
H-1B valid till July 2014
I'm hearing that even if I leave the US and re-enter using my AP, the H-1B can still be renewed/transferred later on, if desired. Is that correct? This means that re-entry using AP would not automatically invalidate my H-1B status.
Does re-entry using AP complicate any future employer change under AC21 (if I-485 is pending for at least 180 days after filing)?
Does re-entry using AP complicate the situation in case of a layoff less than 180 days after I-485 filing?
Lawyers are conflicted on this. Some lawyers say that the H1 visa is not valid if you enter using AP. Some say you are still on H1 even if you enter using AP.
Hence it would be best to talk to your lawyer. In case the applicant enter using AP and H1 is no longer valid, the applicant will be out of status if there is layoff or I-485 is not approved. It would be best to renter using H1 visa.
A quick note: If you already have valid H1 stamp on the passport, you should use that to enter US.
1/28/2014 11:16:35 PM
Thanks Amazon for your responses.
I didn't have a valid H1-B stamp in my passport while re-entering; so I ended up using my AP. I did have long discussions with my lawyer before doing this though.
For the benefit of anyone else having this question: Merely re-entering the US based on an AP does not invalidate one's H1-B status. In fact, even after re-entering on an AP, one's H1-B visa can still be renewed (if all the other criteria allow for it). The only practical thing to know about entering on an AP is that CBP sends you for "additional processing" at the airport, and there is a wait for it. In my case, I wasn't really asked any questions or anything, but had to wait my turn (for about an hour) on a day that was particularly busy for the CBP officers.
My scenario: my husband has applied for H4 in December 2013 but hasn't received the approval yet. In the meantime, my PD of Jan 12 became current in jan 14 and the lawyers are filing 485 for me soon. The plan is that hopefully if his H4 gets approved in Feb, he can travel here and apply for 485 as well. Do you see any risk with the fact that he sends his 485, leaves the US, travels back for the biometrics and then leaves again using his H4, assuming we are ready to bare the travel cost.
Also, My lawyer suggests that he should come back here for the third time soon after His advance parole is approved to minimize any risk with CBP. Any thoughts? I am not sure how does it matter if he travels soon after or later after approval of advance parole?
GC is typically approved soon after the AP is approved. It is important to be inside country when GC is approved (since AP will no longer be valid). Hence the lawyer may have suggested to return quickly.
Though AP is no longer valid, the applicant can tell the CBP officer that his GC recently wa approved by USCIS office and they should be able to check the system and allow him entry.