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  #1  
Old 07-21-2009, 09:28 AM
feedfront feedfront is offline
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Unhappy Urgent Help (stuck in India) H1b & AP

Hi,

I had to come to India because of death in distant family. I got emergency appointment for

H1B Visa at hyderbad but the office put my application on 'administrative processing' becoz she was concerned about my job (sounded like bio terrorism to her). She told me to provide more details about my job, company's clients and current research etc for further processing. She kept my application and passports (old and current).

I work for Biotech company from last 7 yrs (same company, almost same position becoz of GC)

and involves bio samples. Though I don't work in LAB and I'm s/w engineer providing s/w solutions for internal use.

I have AP also and July filer with finger printing and everything done (waiting for GC). My return flight is on July 27, 2009 and it's very impposible to postpone the date (mainly becoz seats are not available, end of summer break and secondly I cant away from work for long becoz of economic condition).

I have following questions for gurus, please reply ASAP:
1) Can I use AP to return back and still keep my H1B legal? Can I switch job using H1B (not EAD), in case my current employer closes down our unit)?
2) How to get the passport & I-797 (H1B approval notice) back? Should I tell them that since you may take longer time, my employer has suggested to use AP to come back and continue the work.
3) My half of the holidays have used up here (partly bcoz of stamping and partly becoz of funeral ceremony). I have to go to my hometown to see my family and I don't want to leave w/o passports.

Please, please suggest as soon as possible. Whether I should withdraw my passport and on what basis? Do you guys see some catch here.

TIA
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  #2  
Old 07-21-2009, 09:31 AM
feedfront feedfront is offline
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Exclamation Please advise

My attorney is suggesting to use AP and come back. But he's suggesting not to tell you will be using AP to travel so give back my passport. He's telling it's ur passport and u should ask for it without giving any reasons. I will have to give some reasons as we dont need passport for domestic travel.

Gurus please advice.
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  #3  
Old 07-21-2009, 10:06 AM
sledge_hammer sledge_hammer is offline
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Default

Post your query in the "Ask an Attorney" section.

Can your company HR and attorney come up with a letter stating your job duties and the department within the company you work for? If they can (and I suppose they WILL), you can present it to the officer at the consulate.
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  #4  
Old 07-21-2009, 10:30 AM
thescadaman thescadaman is offline
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Default Your Passport is your document

Whatever said and done, your passport is your legal document. USCIS cannot keep it without your consent.

You can demand the consulate to return your passport. Visas/application forms/EAD cards etc. are their documents. Passport is not their document!

I know one person who was in similar situation. He called USCIS and told them that Passport is his legal document and that he was going to contact Lawyers that USCIS is forcefully keeping the Passport. The consulate folks got scared about lawsuits etc. and expedited the processing.
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  #5  
Old 07-21-2009, 12:13 PM
va_dude va_dude is offline
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Default

I think you want to be careful about randomly calling the consulate and issuing threats about how the passport if your property and they need to hand it back.

The fact is they have detained your papers because they aren't sure if they should let you back in to the US. I do feel your pain.

First of all i think you need to work on getting a detailed letter from your employer detailing your job duties, responsibilities, clients, projects, etc.
Also go to the consulate and request for your passport and then take it from there.

Regarding your questions:
1. Yes you can switch to another employer using your h1-b, assuming the new employer files for the transfer. But if the consulate is holding on to your original 797 then i dont know how that'll work out. Easier option is EAD, but there's inherent risk in that option too.

2. Don't think you should tell them that you want to come back using AP now and not H1.

just my 2 cents. good luck. hope things work out.
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  #6  
Old 07-21-2009, 12:38 PM
thepaew thepaew is offline
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Default You may be stuck for a few weeks until DOS clears your case

Hi

I am sorry to hear of your situation. However, this is a very common problem and persons with higher education are being subjected to additional administrative checks. You can find a lot of people who are stuck on facebook. Here is the link:
221g/ Visa Mantis/ Technology Alert List or TAL check | Facebook

I asked a prominent attorney about his opinion and he mentioned that there is one way to get around this. Your employer needs to apply for export control license and renew it every 2 years. If they do not do this (most do not) you may be subject to such administrative processing in the future as well.

BR

Quote:
Originally Posted by feedfront View Post
Hi,

I had to come to India because of death in distant family. I got emergency appointment for

H1B Visa at hyderbad but the office put my application on 'administrative processing' becoz she was concerned about my job (sounded like bio terrorism to her). She told me to provide more details about my job, company's clients and current research etc for further processing. She kept my application and passports (old and current).

I work for Biotech company from last 7 yrs (same company, almost same position becoz of GC)

and involves bio samples. Though I don't work in LAB and I'm s/w engineer providing s/w solutions for internal use.

I have AP also and July filer with finger printing and everything done (waiting for GC). My return flight is on July 27, 2009 and it's very impposible to postpone the date (mainly becoz seats are not available, end of summer break and secondly I cant away from work for long becoz of economic condition).

I have following questions for gurus, please reply ASAP:
1) Can I use AP to return back and still keep my H1B legal? Can I switch job using H1B (not EAD), in case my current employer closes down our unit)?
2) How to get the passport & I-797 (H1B approval notice) back? Should I tell them that since you may take longer time, my employer has suggested to use AP to come back and continue the work.
3) My half of the holidays have used up here (partly bcoz of stamping and partly becoz of funeral ceremony). I have to go to my hometown to see my family and I don't want to leave w/o passports.

Please, please suggest as soon as possible. Whether I should withdraw my passport and on what basis? Do you guys see some catch here.

TIA
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  #7  
Old 07-21-2009, 12:54 PM
Leo07 Leo07 is offline
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Arrow I posted one in 'Ask an Attorney" section

Please follow the section 'Ask a lawyer for Free'.

I don't want to give suggestions out of my experience, when you are in need of a 'law'

Good Luck!
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  #8  
Old 07-21-2009, 01:33 PM
puddonhead puddonhead is offline
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Default

Quote:
Originally Posted by feedfront View Post
My attorney is suggesting to use AP and come back. But he's suggesting not to tell you will be using AP to travel so give back my passport. He's telling it's ur passport and u should ask for it without giving any reasons. I will have to give some reasons as we dont need passport for domestic travel.

Gurus please advice.
I was in the same situation a few months ago.

The fact that they kept your passport means that the consulate officer intends to give you visa quickly (that is what my company immigration contact told me) - and "lo and behold" - I got my administrative review done with in flat 3 days. In cases where they are doubtful - they usually give your passport back.

The way to get passport back is to tell them that you need it to go to another country (say - Singapore). You may want to buy a refundable ticket (one that can be cancelled for a little fee) if you want to make a better case.

One advice I received from my lawyer is to NOT withdraw the H1 application so the administrative review is completed in its own sweet time. Availability of a recently completed administrative review will help you the next time you go for stamping.

Since my admin review was completed in 3 days flat - I did not need to go through all these hoops. But hopefully they will come in handy for you if needed.
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  #9  
Old 07-21-2009, 01:37 PM
feedfront feedfront is offline
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Exclamation Thank You All

1) I'm undergrad (comp sc engg) with 16 yrs of exp (not Phd holder)
2) I don't think my company (publically traded) will apply for export license as suggested by someone.
3) Can I get my passport and I-797 w/o raising any issues? My attorney says I should get it and use AP to enter? I need second opinion before making that decision.
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  #10  
Old 07-21-2009, 01:42 PM
feedfront feedfront is offline
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Default If I request my passport, will they return I-797 too?

Quote:
Originally Posted by puddonhead View Post
I was in the same situation a few months ago.

The fact that they kept your passport means that the consulate officer intends to give you visa quickly (that is what my company immigration contact told me) - and "lo and behold" - I got my administrative review done with in flat 3 days. In cases where they are doubtful - they usually give your passport back.

The way to get passport back is to tell them that you need it to go to another country (say - Singapore). You may want to buy a refundable ticket (one that can be cancelled for a little fee) if you want to make a better case.

One advice I received from my lawyer is to NOT withdraw the H1 application so the administrative review is completed in its own sweet time. Availability of a recently completed administrative review will help you the next time you go for stamping.

Since my admin review was completed in 3 days flat - I did not need to go through all these hoops. But hopefully they will come in handy for you if needed.
If I request my passport, will they return I-797 too?
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  #11  
Old 07-21-2009, 02:22 PM
piyu7444 piyu7444 is offline
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Default Two option

Two options

1) Wait
OR
2) Withdrwar h1b application and get back every damn paper of yours. Then you can enter on AP and still work on h1b. This is tricky as law does not clearly states if you can or you can not do so. If I were in your situation I would do it.

I am sure you can get your passport back from the consulate but dont think you will get 797 back unless you withdraw your h1b application.

If you could wait for total 3 weeks from the date you applied there is a GOOD chance for you to get h1b stamping. Good Luck
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  #12  
Old 07-21-2009, 03:40 PM
puddonhead puddonhead is offline
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Default

Quote:
Originally Posted by feedfront View Post
If I request my passport, will they return I-797 too?
I am not sure of that - but I doubt it!

If you are entering using AP - then why do you need your I-797? It is safer for you to use EAD anyway.

And again - please ask them to continue your H1 process and dont withdraw it - my lawyer stressed it multiple times.
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  #13  
Old 07-21-2009, 05:19 PM
eb2_immigrant eb2_immigrant is offline
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Thumbs up

Quote:
Originally Posted by feedfront View Post
Hi,

I had to come to India because of death in distant family. I got emergency appointment for

H1B Visa at hyderbad but the office put my application on 'administrative processing' becoz she was concerned about my job (sounded like bio terrorism to her). She told me to provide more details about my job, company's clients and current research etc for further processing. She kept my application and passports (old and current).

I work for Biotech company from last 7 yrs (same company, almost same position becoz of GC)

and involves bio samples. Though I don't work in LAB and I'm s/w engineer providing s/w solutions for internal use.

I have AP also and July filer with finger printing and everything done (waiting for GC). My return flight is on July 27, 2009 and it's very impposible to postpone the date (mainly becoz seats are not available, end of summer break and secondly I cant away from work for long becoz of economic condition).

I have following questions for gurus, please reply ASAP:
1) Can I use AP to return back and still keep my H1B legal? Can I switch job using H1B (not EAD), in case my current employer closes down our unit)?
2) How to get the passport & I-797 (H1B approval notice) back? Should I tell them that since you may take longer time, my employer has suggested to use AP to come back and continue the work.
3) My half of the holidays have used up here (partly bcoz of stamping and partly becoz of funeral ceremony). I have to go to my hometown to see my family and I don't want to leave w/o passports.

Please, please suggest as soon as possible. Whether I should withdraw my passport and on what basis? Do you guys see some catch here.

TIA
Your PASSPORT is your property, USCIS can NOT keep it. they can approve or deny your application but should be holding on to your PP
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  #14  
Old 07-21-2009, 07:48 PM
maddipati1 maddipati1 is offline
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Default puddenhead is on the dot

my personal opinion, puddenhead is right on dot. readh his replies closely. seems like best approach, along with submitting detailed job description letter.
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  #15  
Old 07-21-2009, 08:11 PM
rameshvaid rameshvaid is offline
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Default Your attorney is right

Quote:
Originally Posted by feedfront View Post
My attorney is suggesting to use AP and come back. But he's suggesting not to tell you will be using AP to travel so give back my passport. He's telling it's ur passport and u should ask for it without giving any reasons. I will have to give some reasons as we dont need passport for domestic travel.

Gurus please advice.
Passport is your property and you can ask it back. They will not refuse to give it back. You simply come back on AP .

I was stuck in Montreal and so was another person from NJ. I got my visa after 2 months but another person was not called for 2 months. He used AP to come back after two and half months. He was not asked anything about visa appointment at the POE. He was called again after a month by the embassy and asked him about his whereabouts and he told he came back on AP but had to go back again to Montreal. This time again they did not give him the visa and he came back again on AP. After that I am not in touch with him but if you need you can PM me I can give you his phone # so that you can talk to him directly and if he is willing to share his story with you..

Good Luck..

RV
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