Using AP activates EAD?

[zak74]

Hi,

My Nov 2008 and I got my EAD in April 2012 and it expires on April 2013.

My H1B ((I-797) I-94 is still December 2013. But my visa stamping expired long ago (May 2009).

1. If I travel outside US and return using EAD/AP combo card, does it changes my status from H1B to EAD?

2. Can I just use AP for re-entry without activating EAD?

I would like to clarify these things because 1. I am unable to travel outside US for vacations to nearby countries (not my home country) and

2, I want to see if I can go to Canada to get my visa stamped.

Your inputs are appreciated.

Thanks

Zee

[pontevecchio]

1. EAD is not a status. 2. When you come back using the AP you will no longer be in H1 status and have to use the EAD as your work authorization. You can use AVR to visit Canada and Mexico. Why H1 ? Is family involved?

[vevi44]

Interesting answer potevecchio. I was in a understanding that use AP wouldn't automatically put me in EAD.

I have to switch to a new employer very soon and was thinking to use H1B instead of EAD (I did enter using AP). I need to check with lawyer if I can use H1B.

[pontevecchio]

If the new employer files a H1 petition for you ,you will be back in H1 status if approved with an I94 which would be the norm. Let us know.

[zak74]

1. EAD is not a status. 2. When you come back using the AP you will no longer be in H1 status and have to use the EAD as your work authorization. You can use AVR to visit Canada and Mexico. Why H1 ? Is family involved?

Thanks pontevecchio. No family involved. I'm not married. I did not know about AVR. Is it some temporary visit visa? Will AVR let me return back without having a visa stamp?

Is AVR applicable to any country or just Canada and Mexico?

[pontevecchio]

AVR is only applicable to the USA. Visits to Canada and Mexico would involve the rules of Canada and Mexico. Yes, AVR is only applicable to these countries for a person in H1 status.

[pteki]

I too have a similar case.. I'm on H1B and we couldn't apply her H4 renewal as she was not in US at the time when i renewed mine. We both have EAD/APs. She went to India and coming back using AP. Does this change my status from H1 to EAD or Do I need to mention this any where?

[pteki]

corrected...

I too have a similar case.. I'm on H1B and we couldn't apply my wife's H4 renewal as she was not in US at the time when i renewed mine. We both have EAD/APs. She went to India and coming back using AP. Does this change my status from H1 to EAD or Do I need to mention this any where?

[pontevecchio]

@pteki What she does has no effect on you. You can continue to be in H1 status and she can be awaiting AOS and also work with an EAD.

[tusharvk]

use of AP will put the user in non-H status clearly

The principal should remain in the h1 status. If needed, the h1 principal can apply for the h4-cos of the spouse or simply get h4 visa stamped.

[Belle]

use of AP will put the user in non-H status clearly

Citation needed.

[Ariean]

1. EAD is not a status. 2. When you come back using the AP you will no longer be in H1 status and have to use the EAD as your work authorization. You can use AVR to visit Canada and Mexico. Why H1 ? Is family involved?

My understanding is that for US H1B residents if you use EAD/AP card for travel but still working for same employer who sponsored your H1B as well as EAD, your work authorization still remains H1B. AP part is just for travelling with out a visa stamp in using this doesn't qualify your non-H status unless you switch the employer using your EAD.

For non US residents since GC is for future employment and EAD/AP qualifies you travel/work in USA, once they land in USA and start working in USA they would be considered as non-H status or just H status is irrelevant/not applicable.

Please advise if i am wrong.

Thank you.

[pontevecchio]

In such a situation the dependent cannot use H4.

[cap-gap]

this should answer yall's dilemma..i think the articles is discussing the so called cronin memo..

http://www.murthy.com/2008/03/21/effect-of-travel-while-in-h1b-l-1-status-and-pending-i-485/

[Ariean]

In such a situation the dependent cannot use H4.

Using AP doesn't invalidate your H1B petition and H1B beneficiary is still eligible for some benefits of it.

H1B beneficiary who uses the AP to enter USA is still eligible to work for H1B employer and his work authorization would be unexpired/valid H1B petition and valid I-94 as work authorization with/without valid H1B stamp in passport.

Hence i think the H1B dependent is still eligible for H4 visa considering the above facts otherwise the spouse has to wait for endless time waiting for I-485 priority date to become current to include her in immigration process or get the spouse to USA via different visa category.

Please advise if i am wrong.

Thank you.

[tusharvk]

quick review of the murthy bulletin explains that the AP entry will make the user parolee. The parolee can continue to work in h1b if there is approved h1b petition, the worker will use it as EAD. But the user is non-h status.

But what of the dependents? They are in AOS category as it will be evidenced by the stamp on their i-94 cards.

Filing I129 and I539 will bring the parolees in a valid h-status.

[pontevecchio]

You are in the firing line. Feel free to speculate or involve a Lawyer.

[ven7782]

Using AP does activate EAD. However you always have an option to go back to H1, if you have a valid H1 by stamping it by going out of the country.

Yes you can go to Canada and get your h1 stamped. In case of any issues you can always enter US on AP/EAD.

[Bleacherseat]

I think I can speak from personal experience here:

Using AP to enter U.S does NOT in-validate your H1B (in other words activates your EAD or whatever phrase you would like to use).

1. I had an EAD/AP and H1B both. Wife only had H4. (I was not married when my I-485 was filed).

2. Went to Carribean for a vacation.

3. While returning I presented my H1B visa and she did her H4.

4. Officer says you should be on Advance Parole.

5. I said - have that too. presented him my AP.

6. I entered as AOS applicant on AP. My passport was tamped with AOS written on the seal.

7. Wife entered on H4. (which I thought was weird since H4 is derivative of H1B)

8. came back spoke to corporate immigration lawyer. she said -- you could either enter on H1B or AP. Its no problem. The fact is you are a dual status applicant - both H1B and EAD/AP. You are not violating the terms of immigration law by entering on AP. You are fine.

(Now keep in mind , if you take your EAD and start to work for another employer - other than the one who holds your H1B -- that would invalidate your H1B. Since you are not authorized to work for that new employer on your H1B -- you are however authorized to work for that employer because of either AC21 portability or the fact they filed your green card.)

Coming back to the point:

8. Renewed my H1B and wife's H4 after that incident for 3 years. No problem.

9. Transferred my H1B to new employer last year. Again no problem.

[tusharvk]

so just to understand point#8: you renewed h1b by your employer filing i129.

What problem did you anticipate?

You entered as parolee as per the stamp on your passport. Then employer filed i129 and you may have gotten i797 & I94 meaning you are back in h-status.

Curious why the officer at poe asked for AP if you already have h1b.

[Bleacherseat]

don't know why the office asked for AP. Attorney said officer was mis-informed. I could either present AP or H1B .both should have been acceptable.

Regarding #8. I did not anticipate any problems. My point is my H1B status remained valid even after I entered on AP. When that H1B was nearing expiry employer renewed it for another 3 years.That was 11th year on H1B. I never went out of H1B status. So no there is no question of getting back on it.

When you have filed AOS application , you are under dual doctrine/intent. Look it up.