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H1 versus AP to re-enter US

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Posted by utopian123 (28) 31 Dec 2017#1
I just got my AP/EAD combo card 2 days back. My H1 visa is expiring on 8th Feb 2018. I have the extension approved which is valid till Aug 2020. I am planning a visit to India sometime in the 3rd week of Feb '18. I have the following questions:

1) Has my status changed in US since i got the EAD/AP? I have a valid H1 stamp visa in my passport till 8th Feb 2018

2)For the purposes of 1-9 verification, what document should i use the approved H1 extension or the AP which is valid till Dec 2018

3) I understand that since i have AP card, i don't need to get visa stamping done in India to return. However using AP to enter US automatically revokes the H1 status. Is this a correct understanding?

4) If I use AP to-renter and if H1 is revoked , is it possible to re-instate my H1 status? If so how is it possible? I am interested to retain my H1 status, since I plan to get married while in India and bring my spouse on H4, which wont be possible if come on AP. Is my understanding right?
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Posted by spideey666 (6662)   31 Dec 2017#2
to utopian123:

1. no. EAD/AP is just additional authorization to work and travel. Not a visa like h1b.
2. You can use your h1b approval along with your ssn and ID.
3. Correct, Your h1b is not revoked when you enter on AP. Your status will becomes as paroled, but you will continue your work on h1b. I-9 needs a form of employment authorization. It can be EAD or h1b.
4. If you want to truly be back on h1b, you have to apply for h1b extension again and that will change your status from paroled to h1b again.

Your spouse has to get h4 anyway. Why not get h1b renewed as well? That way you both can come back on h1b/h4 and heep Ap as a backup. If you dont want stamping, it could be an issue if you try to enter on AP and request h4 entry for her. Not sure how that works out. Better to be in sync.
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Posted by utopian123 (28) 31 Dec 2017#3
to spideey666:

Thanks for your response. On your 4th point above, I already have an H1 extension I797 approval which is valid till 8/20/2020. Do You mean I need to refile an amendment to get back on H1 after I come on AP? Based on what i have read in other forums, if you work for the same employer after you return to US on AP, you automatically retain your H1 status. There is not need to file an extension. Is your understanding different? In that case, my spouse can come to US on H4 and I dont need to go for H1 visastamping as well..
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Posted by spideey666 (6662)   01 Jan 2018#4
to utopian123:

I did not say, you have to do the status cange back to h1b again. Thats only needed if you want your status to be h1b, and not paroled. When you enter with AP your I-94 status is "paroled". Not "H1b". But you can still work with h1b from a I-9 perspective. When your next extension comes up, you can apply for h1b extension, and your status will change back to h1b. What I am not 100% sure if, if your status is paroled when you enter, can your wife be on h4? May be someone else can answer here.
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Posted by titan1978 (810) 01 Jan 2018#5
to spideey666:

i have spoken to a lawyer about this as its my exact situation and i'm quoting him here "typically the law that states if a spouse can enter on H4 when the Primary is on H1B is not clear. Usually its upto the Immigration Officer to decide if this is a valid form of entry and until the previous administration, this usually wasnt a problem. However, in the CURRENT ADMINISTRATION, I would not risk on vagueness of interpretation of the law. Recommend NOT to use AP if your wife wants to enter on H4"

so - get stamping - dont use AP if your wife wants to enter on H4 risk free.
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Posted by utopian123 (28) 01 Jan 2018#6
to titan1978:

Thanks both of you for your responses. I guess getting visa stamping is the only option to be on H1 and bring spouse on H4.

On a different topic, I noticed both of your priority dates are current as of the Jan 2018 bulletin. Based on your experience and the trends you are seeing here, when do you expect to get a call for the interview or still better the GC in hand?

The reason I am asking is my priority date is 28-Jan-2008 and its been 5 months since my 485 got applied, and based on responses I have got from some , it appears it will take 8-12 months at the minimum to get interview call. Is your understanding the same?
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Posted by titan1978 (810) 01 Jan 2018#7

Thanks both of you for your responses. I guess getting visa stamping is the only option to be on H1 and bring spouse on H4.

On a different topic, I noticed both of your priority dates are current as of the Jan 2018 bulletin. Based on your experience and the trends you are seeing here, when do you expect to get a call for the interview or still better the GC in hand?

The reason I am asking is my priority date is 28-Jan-2008 and its been 5 months since my 485 got applied, and based on responses I have got from some , it appears it will take 8-12 months at the minimum to get interview call. Is your understanding the same?

to utopian123:



I filed by 485 before March 2017 so interview doesn't apply to me - my lawyer has indicated that many petitions (other than ones stuck in BG check) are getting approved between 4-6 weeks after RFE (for non-interview petitions only). I don't know the timelines for interview.

And looks like Spidey missed his petitions from being "current" by 2 days unfortunately.
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Posted by phoenix131281 (73) 02 Jan 2018#8
I am in a similar status. Have H1 petition approved till 12/2020. AP valid till 10/2018. Spouse is planning to go to India in April and coming back in May. She is planning to use AP. Both of us have used AP before and she is not planning to work for now.

Thoughts, comments advise.
Do you see an issue with this ?


Appreciate all your inputs.
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Posted by spideey666 (6662)   02 Jan 2018#9
to phoenix131281:

no issues.
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Posted by utopian123 (28) 03 Jan 2018#10
Today i got a RFE ( Request of initial Evidence)from USCIS (NBC) asking for my birth certificate. They have given me 87 days to respond. Since this is my first time for getting RFE I have the following questions:

1) Unless I respond to this RFE, USCIS will not take any action on my case. Is that correct?
2) Is it possible to receive another RFE before i respond to the 1st one?
3) 87 days count from the date of the letter which is 27th Dec or date of receipt which is today 2nd Jan?

On the topic of h1/EAD, if i maintain my H1 status by getting visa stamped and I also bring my wife on H4, the question is if change jobs after i come to US w/o doing H1 transfer , but on EAD, will my wife lose the H4 status? In this same scenario, is it possible to join the company on EAD and then request them to H1 transfer so that my wife can maintain H4 status. Is that even possible?

Also, if after responding to the RFE, my GC gets approved before I add her name in the application does my wife become out of status, since I am no longer on H1 and in that case what are the options available to bring her back on status?

Sorry guys asking too many q, but these are all realistic scenarios.. Thanks in advance
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Posted by millions (67) 03 Jan 2018#11
to utopian123:

1. Yes.
2. Yes/No. Depends on the adjudicating officer; if they find that they need additional evidence, they will ask for it. However the chances are slim.
3. Most probably date of the letter.

My suggestion would be to respond ASAP. Sooner you respond, faster will be your processing.

If you get H1 stamped and your wife gets H4 stamped while in India and both of you re-enter using your visa (and not the AP) then your status remains H1 and H4. Afterwards if you change jobs using your EAD, your wife remains H4 (with a pending AOS application) till you leave the US. In that scenario when you re-enter you will be using your EAD/AP. Your wife will then need an AP to re-enter. Thus, if you change your job using EAD, you should apply for an EAD-AP for your wife. Currently she is eligible for EAD-AP if you add her as a dependent on your I-485, which is something you need to do ASAP after her entry into the US on H4. She is also currently eligible for H4 EAD based on your pending I140 but it is much better for you to include her as a dependnt on your pending AOS. As long as your AOS is pending, you can add your spouse as a dependent on your AOS. Basically you need to file an AOS for her.

If you use your EAD for a job transfer you immediately lose your visa status, so you cannot request for an H1 transfer.

If after responding to the RFE, your GC gets approved before you add her name in the application, your wife's visa status becomes an issue. I can only guess that her stay in the US will not be affected but she will not be able to re-enter on H4 visa if she leaves the US. But this is a tricky situation and needs to be avoided at all cost.

IMO, the best case scenario is that you go to India, get your H1 stamped (you may be able to use drop box; check if you qualify), get married and get her H4 stamped. Re-enter on H1B/H4 and ASAP apply for her as a dependent in your pending AOS. In this case it may be worth delaying your RFE resonse.

***All of the above are purely opinions based on my personal understanding the USICS regulations and based on what I read on this forum and elsewhere and not based on any legal background whatsoever.***
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Posted by utopian123 (28) 03 Jan 2018#12
to millions:

Thanks so much for your response!! This is extremely helpful. You can imagine the anxiety i am going through because of the tricky situation I am in..

Thanks again
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Posted by hopebest2017 (130) 12 Jan 2018#13
to utopian123:

Hi,
I have I-94 valid till April, 2019. I have got my AP and EAD approved as well as I have applied for I-485 under cross Chargeability.
I am planning to travel to India. I am confused on the below:
1. I have valid H1B I-94 till April, 2019. If I travel to India with AP do I need to get H1B VISA stamped in my Passport?
2. At the time of entry in USA what will happen to my H1B status? Will it become invalid? If H1B becomes invalid then do I have to apply for EAD/AP extension to stay in USA in case my I485 remains pending?

Please can you let me know what need to be done before I travel to India as I can understand from your post that you had similar issue/situation. Thanks in advance!
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Posted by permgcs (171) 22 Jan 2018#14
to hopebest2017:

1. if you are planning to use your AP, no visa needed to enter USA
2. You will be in Dual Status if working for the same company and your status will still be H1 for I9 purposes. H1 does not becomes invalid. If you change the company then you need to use ur EAD or H1 transfer after entering USA.
Hope this helps.
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