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  #1  
Old 10-30-2011, 07:02 PM
sundarpn sundarpn is offline
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Default Primary entering on AP, Spouse uses valid H4 stamp?

Hello,

I am currently working on H1b but also have valid AP. My H1b visa stamp has expired. I have my h1b extension till Feb2014.

My wife is on H4 and has a valid visa stamped. She does not have AP, as her I485 wasn't filed back July 2007 when dates were current.

Question: If we travel outside the US, when re-entering US:
a. Can I enter using my AP instead of getting my visa stamped?
b. While (at the same time) my wife uses her valid H4 visa to enter?

Any ramifications of doing the above so? (compared to me entering with a valid H1b visa). Since I am traveling for a short duration, I want to avoid the hassle of getting my H1b extension stamped.


Thanks.
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  #2  
Old 11-01-2011, 09:50 AM
NIW NIW is offline
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Hey Man!
Once you use your AP to enter in to the country, you are on AOS not on H1B, hence your wife's H4 will not valid.

Also you did not mention anything about your EAD as you need to have an EAD to work after you get back.

Its either H1B or AOS, so pick your battles carefully before you leave.
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  #3  
Old 11-01-2011, 07:27 PM
nomad nomad is offline
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Its true that once you enter using AP, you are a parolee, but you can still continue working for the same employer who filed your H1 without EAD. you can extend/amend your H1/h4 later too, at that time you will come back to H1 again. there's Cronin memo dated 2000 that touches the issue. No need of EAD in this case .

In your spouse's case, she may be able to enter using her H4 visa, but i dont know how it will be treated since she doesnt have I-485 pending. i think you can amend your H1 along with her H4 once she is here in US.

Quote:
Originally Posted by NIW View Post
Hey Man!
Once you use your AP to enter in to the country, you are on AOS not on H1B, hence your wife's H4 will not valid.

Also you did not mention anything about your EAD as you need to have an EAD to work after you get back.

Its either H1B or AOS, so pick your battles carefully before you leave.
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  #4  
Old 11-03-2011, 11:07 PM
vegasbaby vegasbaby is offline
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Quote:
Originally Posted by sundarpn View Post
Hello,

I am currently working on H1b but also have valid AP. My H1b visa stamp has expired. I have my h1b extension till Feb2014.

My wife is on H4 and has a valid visa stamped. She does not have AP, as her I485 wasn't filed back July 2007 when dates were current.

Question: If we travel outside the US, when re-entering US:
a. Can I enter using my AP instead of getting my visa stamped? You cannot enter plainly on AP. It is AP + EAD if you don't want to stamp your H-1B. If you get your H-1B stamped, you can still use AP to re-enter. Then you are on H-1B/AP combination. Your I-94 will expire on day your AP expires. Your wife can still enter on H4.
b. While (at the same time) my wife uses her valid H4 visa to enter?

Any ramifications of doing the above so? (compared to me entering with a valid H1b visa). Since I am traveling for a short duration, I want to avoid the hassle of getting my H1b extension stamped.

Thanks.

- Hope this helps
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  #5  
Old 11-03-2011, 11:24 PM
nomad nomad is offline
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He can enter using AP without his H1b stamped on passport. I personally did it in 2008, and extended my H1 later too without any problem. Also he doesnt need EAD if he is working for the same H1 employer after entering on AP.

His wife can enter using her H4 too. Since she hasnt applied for AOS, its better to amend H1 after entering in AP to come back to h1 status, and then bringing wife back here because I dont know her status if you come first in AP and she enters in H4 ( without a valid AOS pending)

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Originally Posted by vegasbaby View Post
- Hope this helps
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  #6  
Old 11-04-2011, 08:24 AM
GCHope2011 GCHope2011 is offline
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Default

Quote:
Originally Posted by sundarpn View Post
Hello,

I am currently working on H1b but also have valid AP. My H1b visa stamp has expired. I have my h1b extension till Feb2014.

My wife is on H4 and has a valid visa stamped. She does not have AP, as her I485 wasn't filed back July 2007 when dates were current.

Question: If we travel outside the US, when re-entering US:
a. Can I enter using my AP instead of getting my visa stamped?
b. While (at the same time) my wife uses her valid H4 visa to enter?

Any ramifications of doing the above so? (compared to me entering with a valid H1b visa). Since I am traveling for a short duration, I want to avoid the hassle of getting my H1b extension stamped.


Thanks.
Lets be clear - your status when you enter on AP is a Parolee. Not an H1B. Which means, the moment you enter on AP, you are no longer on H1B, and all associated benefits (if you may call it a "benefit") cease. Which means that your wife will no longer have a "valid" H4, as you are no longer on H1.

Now, if you "resume" work for the H1 employer after your trip abroad, you are considered to have "resumed" your H1 from work authorization standpoint, but you are still a Parolee. And you can continue to work on H1 until the expiry of your H1 approval (not until the expiry of AP - I-94). However, you can renew, transfer and possibly ask for a change of status to H1, while you are inside the country.

So, technically, if you are standing in the immigration line before your wife and are admitted before your wife, your wife loses her H4. But if your wife goes to the counter first and gets admitted, and then you get "Paroled", and join the H1 employer, things will be after.

Better strategy will be to have your wife travel a day or two prior to you entering.

It is a grey area of regulation - and it gave me a good amount of tension to figure out the intricacies of this situation - particularly as I got a RFE related to this "entering on AP but working on H1" situation in July 2011. Cronin memo is what I quoted in the response to the RFE. The best part is that I could not find the Cronin memo on the USCIS website, but a scanned copy was there on one of the lawyer's website.

Again, these are my interpretations, based on my own experiences and research. Please exercise your own judgement about your situation.
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  #7  
Old 11-04-2011, 05:34 PM
njverifier njverifier is offline
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Quote:
Originally Posted by GCHope2011 View Post
Lets be clear - your status when you enter on AP is a Parolee. Not an H1B. Which means, the moment you enter on AP, you are no longer on H1B, and all associated benefits (if you may call it a "benefit") cease. Which means that your wife will no longer have a "valid" H4, as you are no longer on H1.

Now, if you "resume" work for the H1 employer after your trip abroad, you are considered to have "resumed" your H1 from work authorization standpoint, but you are still a Parolee. And you can continue to work on H1 until the expiry of your H1 approval (not until the expiry of AP - I-94). However, you can renew, transfer and possibly ask for a change of status to H1, while you are inside the country.

So, technically, if you are standing in the immigration line before your wife and are admitted before your wife, your wife loses her H4. But if your wife goes to the counter first and gets admitted, and then you get "Paroled", and join the H1 employer, things will be after.

Better strategy will be to have your wife travel a day or two prior to you entering.

It is a grey area of regulation - and it gave me a good amount of tension to figure out the intricacies of this situation - particularly as I got a RFE related to this "entering on AP but working on H1" situation in July 2011. Cronin memo is what I quoted in the response to the RFE. The best part is that I could not find the Cronin memo on the USCIS website, but a scanned copy was there on one of the lawyer's website.

Again, these are my interpretations, based on my own experiences and research. Please exercise your own judgement about your situation.
Very Good explanation. I am in the same boat, me and my family are planning to re-enter US on the same day/same flight I have no choice as my wife is pregnant and we have an infant to be taken care of. My plan is to send my wife ahead in the immigration queue and I enter immigration queue later after 10-15 mins of her entry. I am risking this as I have no choice. I entered US on AP previously but I was traveling alone and I didnt had any issues when my H1 got extended(7th year) not even when my wife got her stamping in India recently. I don't expect things to be smooth on the day of return but as I said I have no choice. I will definitely post my experience as I see there are lot many people like me who are in this situation.

@GCHope2011 - at what stage did you get an RFE? H1 Extension or I-485?
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  #8  
Old 11-19-2011, 09:20 AM
mars mars is offline
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Hi njverifier,

Could you please post your experience ??

I am planning to visit India and if i reenter using my AP , can my wife enter using her H4 ??

she doesn't have AP or EAD and she is in India.

Thanks
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  #9  
Old 11-19-2011, 05:53 PM
njverifier njverifier is offline
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Originally Posted by mars View Post
Hi njverifier,

Could you please post your experience ??

I am planning to visit India and if i reenter using my AP , can my wife enter using her H4 ??

she doesn't have AP or EAD and she is in India.

Thanks
I don't understand why people give their own interpretations without knowing the law. If you have questions the best possible solution is to contact your attorneys. DO NOT RELY on information found on forums. Forums are open for people to express their views but they should not be take for granted.

Here is what I did in the past - in 2008 I used AP to travel out of country but my wife did not travel with me. Her status till date is H4. I got my H1 extended for the 3rd time (7th year) and along with that my wife's H4 got extended in 2011. This proves that using AP does not have any affect on H1/H4 statuses.

Current situation - My wife is on H4 and she went to India now I am back in India (just got here) I have to intentions to stamp my H1 as the consulates are creating a havoc. So my safe bet is using AP to re-enter. But then I had the same doubt as you got - me using AP and my wife will be using H4, how will this work. My immediate step was to drop an email to my attorneys explaining the situation and they responded me pretty quickly telling that this is a peculiar situation however there will be no affect on H1/H4 statuses if I use AP. But one thing that my attorney was concerned about was that an immigration officer might not have got trained for this particular situation so my attorney asked us (me and my wife) to go in separate immigration queues so as not to confuse the IO. I will be returning back to US in mid December before my AP expires (along with my family) and here is what I am planning to do - I will let my wife go through immigration first so that I can be sure that she is inside US without issues. I will follow a separate immigration queue at least 5 mins after my wife gets through the immigration. Now using AP will have some more steps of processing at immigration, they might make you sit for hours together without issuing you a parole stamp. This is very common scenario if you are using AP so nothing to panic here. Just wait till you get your turn and enter US after you get your parole stamped.

I will post my experience after I come back. Hope this helps.
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  #10  
Old 11-20-2011, 08:37 PM
mars mars is offline
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Hi njverifier,

Thanks so much for posting quick response..

I was planning to go for stamping either to Mexico or in India ( though there are lot of horrible stories i have heard of late reg people when went for stamping in india) as i am planning to go to india in Jan..

Pls do post back your experience as soon as you get a chance..

thanks
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  #11  
Old 11-21-2011, 12:27 AM
sundarpn sundarpn is offline
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The replies above seem to have one's own interpretations. I have asked my company attorney. I'll share what I find.
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  #12  
Old 11-23-2011, 08:52 PM
njverifier njverifier is offline
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Quote:
Originally Posted by sundarpn View Post
The replies above seem to have one's own interpretations. I have asked my company attorney. I'll share what I find.
Dude, I have already mentioned what my attorney said and I also said it is in your best interest to contact attorneys in matters like this. Forums are meant for everyone's own interpretations that is why it is called an open forum. Now you will talk to your attorneys and will give your own interpretation so what's big deal? Read the forum posts before responding.
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  #13  
Old 11-23-2011, 08:58 PM
njverifier njverifier is offline
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Originally Posted by sundarpn View Post
The replies above seem to have one's own interpretations. I have asked my company attorney. I'll share what I find.
BTW SUNDARPN - you initiated the thread on 30th October. What were you doing for a month without contacting your attorneys so far?

And yes, please post what your attorneys says. People who cannot afford an attorney will get a better idea by reading the posts like this. I have done my part it is all yours now.
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  #14  
Old 12-15-2011, 06:14 AM
njverifier njverifier is offline
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Originally Posted by sundarpn View Post
The replies above seem to have one's own interpretations. I have asked my company attorney. I'll share what I find.
OK, I am back in the USA on the 13th December 2011, my AP set to expire on 16th December 2011. I was very tensed as we approached the immigration counter in NYC. As planned I sent my wife with my kid first and I was second in the line of immigration. The immigration officer took finger prints of my wife and as she was about to stamp my wife's I94 she saw the customs form which had my name on it and asked my wife where I was. My wife said I was standing next in the queue. IO called me and asked me why did we not come together in the immigration queue. My wife gave a stupid explanation which I am sure the IO did not buy. IO took my PP and AP. Here is the conversation we had:

IO: You are traveling on AP and you wife on H4?
Me: Yes Mam
IO: Where is your wife's AP?
Me: I did not apply one
IO: got confused and said if I stamp your Parole you will be a parolee and your wife will be out of status
Me: (My heart was beating fast) Once I enter the USA I will start working on the H1 so my H1 status will not he inactive so my wife's H4 status will remain intact
IO: Yes, but still you will be a parolee

IO asked us to stay at the counter and she went to clarify the situation with her senior officer. She spoke to another officer who answered her query but she wanted to be double sure so she went to another officer and asked him, even he said the same thing what the other officer said(I dont know what he said but I can guess). She came back to the counter and conversation continued...

IO: Why didn't you apply your wife's AP?
Me: Due to non-availability of visa for greencards I could not apply
IO: When will you apply AP for your wife?
Me: once the visa's are available I will apply
IO: When will that happen?
Me: In another 2-3 years
IO: your H1 will be expired by then...
Me: My company will renew my H1 till I get my greencard. My H1 can be renewed without problem as I applied for AOS
IO: let me get your finger prints... Finger printing and photo is done, IO stamped my wife's I94.
IO:you have to go into the office for AP processing
Me: OK Mam
IO: Your wife can accompany you into the office if you want or she can claim the baggage and wait there
Me: Thank you mam, my wife will claim the baggage and wait there
IO: Your wife cannot exit with you
Me: I understand mam, Thank you

I went into the Immigration office and gave the documents to the officer who asked me to be seated. In the meanwhile my wife went to the baggage claim, gathered the baggage and waited there.

After waiting for about 30 mins it was my AP processing turn. IO officer took the file and started verifying everything. After verification he stamped the AP and I94 and called my name. I went to the officer and he handed over me my PP, I94, AP and customs form. In 10 mins I was out of the airport

I expected a much difficult scenario with the IO's but everything went very smooth. I hope this helps all the people who are in the same situation as me (Primary using AP while spouse using H4). My only suggestion is not to talk too much except for answering what IO asks you.

Wish you all the very best for your travel.
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Old 12-15-2011, 06:17 AM
njverifier njverifier is offline
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