AP, H1 and H4

[Schumi]

Hi All,

 

My wife and I have H4 and H1 respectively. I also have a pending GC application, EAD and AP also (my wife is not on the application, hence she doesnt have AP/EAD; will add her when the PD becomes current).

 

My wife and I are outside the US at the moment. During my last visit (travelling alone) to the US, at the POE, I was forced by the officers to enter using my AP and not my existing H1. I travelled back outside the US and now my wife and I want to re-enter and I am unsure on what to use while entering. I am still working for the same employer who sponsored my H1.

 

Can both of us enter using the existing H1 and H4? or should I use AP and H4 combination?

 

Anyone with experience entering in a similar situation especially at the port of entry?

 

Can someone please advise?

 

Thanks,

 

Schumi

[pontevecchio]

Nobody can force you to do anything. Did you talk to your Lawyer last time about what happened?  cOME BACK IN h1 AND h4 STATUS.

[kalyan_ac]

If you have a valid visa stamping, it is better to enter on H1/H4.

 

At the same time there is nothing wrong with you entering on AP and your wife on H4 as long as your H1 petition is valid and not expired.

[JoeF]

If you use AP, she wouldn't be able to enter with the H4, because for the H4, you need to be in H1 status.

[pontevecchio]

This is one of those myths propagated by some  and I am sorry to say Known Law Firms. You CANNOT come back on the AP and join the same employer who has a H1 petition filed for you and be in H1 status. Maybe some senior Lawyers in this firm should look at some posts some of the time?

[chakrakr]

This is one of those myths propagated by some  and I am sorry to say Known Law Firms. You CANNOT come back on the AP and join the same employer who has a H1 petition filed for you and be in H1 status. Maybe some senior Lawyers in this firm should look at some posts some of the time?

Not completely myth.   This will probably help ..  http://www.murthy.com/2008/03/21/effect-of-travel-while-in-h1b-l-1-status-and-pending-i-485/  

 

What it says is,  if you come on AP and join H1 employer,  you DO NOT need to use EAD.  You still have the benefits of H1.

 

However, if I remember correct,  I have seen in this forum when someone entered on AP  and his spouse entered on H4  (in fact,  the Officer at PoE  admitted her on H4  even though she had a valid AP)

[pontevecchio]

The fact is that if a person is not in valid H1 status his dependents cannot be in H4 status. Considered to be is not the same as a person actually in H1 status. Rules and interpretations do change . You do not mention anything about the preposterous claim that one can be coerced in to coming back in H1 status and asked to use AP. This puts the entire situation in to an implausible situation. The OP would be seriously advised to take Lawyer opinion about his specific situation.

[Schumi]

Hi All,

 

To clarify, my wife and I both have a H4 and H1 visa stamped in our passports.

 

During my last visit the officer insisted that the AP supersedes my H1 and I should always use AP otherwise it jeopardizes my AOS. I understand it was probably incorrect however, I wasnt given much choice.

 

This seems to be a point of contention amongest lawyers as well whether an AP and H4 combination works. I spoke to 2 lawyers with different opinions.

 

Perhaps I should try to re-enter using H1 and then it will be easier for my wife to come afterwards on her H1.

[pontevecchio]

Please hire a Lawyer and talk to him. Multiple opinions by a multitude of Lawyers do not help you. If you had the fortitude to ask to speak to a Supervisor you would not be asking now. Why is it important for you h1 vs EAD? Why is it an issue?

[JoeF]

Please hire a Lawyer and talk to him. Multiple opinions by a multitude of Lawyers do not help you. If you had the fortitude to ask to speak to a Supervisor you would not be asking now. Why is it important for you h1 vs EAD? Why is it an issue?

THe OP said that his wife doesn't have an I-485/EAD filed, so she has no other option as H4. And that means the OP has to be in H1 status, not entering with AP.

[pontevecchio]

I stand corrected. But since they seem to have the

[pontevecchio]

Exactly. He should have insisted in coming in on the H1 visa last time even if he had to speak to a supervisor. One cannot be coerced into entering the way the POE Officer wants. That was my point. If he does not want to hire a lawyer it is his prerogative.

[Schumi]

All-

I have spoken to 2 well known law firms. My GC case is being processed by one of them. The 2 opinions differ completely.

1st law firm has suggested I refile the h1 with an amendment (location, title, etc) and get new stamps and enter the US.

2nd law firm has suggested that I can enter using the AP & H4 combination.

I also called and spoke to 3 different officers at CBP Newark and they all told me using AP and H4 is valid.

So now I am going to speak to a 3rd lawyer to get an opinion.

Also it seems like a few people on this forum have entered using AP and H4.

[Schumi]

All,

 

I flew back into the US (JFK). While entering I used my showed my current H1B visa. The officer asked me saw the parole stamp and asked me if I have a pending AOS application. I told him I did and it was currently in backlog. He asked why i used my AP before to which I replied that theofficer during my last visit suggested I do so. He said that it wasnt necessary and I could use my H1. So I entered the US using my H1B Visa.

 

Thanks,

 

Schumi