Can we Use AVR(Automatic Visa Validation Rule) To convert EAD to H1B

[meetasn]

Got My EAD/AP on 28 FEB, My H1B expired on 16 April, Apllied Extension and went to India for a vacation. My H1B got approved, When I am in India. But entered using AP. But didn't changed to EAD by filing I-9 form.
Now My I-140 was revoked, I am Planning to appeal.In telephonic conversation, he said that I am out of status, If my I-485 is rejected. He advised me to get Canada tourist visa and use AVR rule on way back to US. Is it advisable? Did any body used and success by using this Rule.
I am scared Please advise

[qesehmk]

Who is "He"?
Entering with AP is a bit dangerous for this reason. Yes for the moment you are out of status if you entered on AP and the underlying application is rejected.
However, the simplest way to resume your life here in US would be to go outside of US, obtain an H1B in your passport and come back on H1.

However "He" seems to be suggesting a short cut called Automatic Vias Validation. I am not aware of it. But if true - seems like a godsend. I wish it is true. Kanmani / Spec might know better! Take care and all the best.

Got My EAD/AP on 28 FEB, My H1B expired on 16 April, Apllied Extension and went to India for a vacation. My H1B got approved, When I am in India. But entered using AP. But didn't changed to EAD by filing I-9 form.
Now My I-140 was revoked, I am Planning to appeal.In telephonic conversation, he said that I am out of status, If my I-485 is rejected. He advised me to get Canada tourist visa and use AVR rule on way back to US. Is it advisable? Did any body used and success by using this Rule.
I am scared Please advise

[meetasn]

Sorry, He means some Murthy.com Lawyer,But I also got advice from Law bench.com Lawyer, He told that, If you enter thru AP and work for the same employer, H1 will resume. I didn't filed I-9 form

what to do? To go to canada or not

[JJcalifornian]

http://forum.murthy.com/index.php?/t...my-experience/

[dorais]

Some more links
http://forum.murthy.com/index.php?/t...id-for-canada/

http://cbp.gov/linkhandler/cgov/trav...validation.pdf

http://www.aronsonimmigration.com/ar..._automatic.htm

I filed my 485 with Murthy and before I got my EAD approved, I was asking some hypothetical questions to the attorney on what to do if my 485 gets rejected. He suggested me that I can use some thing called Automatic visa revalidation by going to Canada and coming back into the country. I did not understand it then, but I was going through some of the links above and understood it better.

[meetasn]

Thanks a lot very useful information

[qesehmk]

For H1B, your existing H1 status gets extended automatically with a newly approved 797. Also I think between H4 and F1, the status automatically gets switched when F1 expires. However, I am not so sure about AP and H1. i.e. whether H1 can resume if AP becomes invalid. However if Law bench lawyer can help you do that, it might be a good idea to pay him/her and get his services.

p.s. Having said that ... visa and status are two different things. Visa only allows you entry. Status is authorization to stay. Status can be derived from multiple avenues and in some situation can also be switched. But it would be a good idea to get lawyer's help to understand whether in your situation H1 status can be obtained without leaving US.

Sorry, He means some Murthy.com Lawyer,But I also got advice from Law bench.com Lawyer, He told that, If you enter thru AP and work for the same employer, H1 will resume. I didn't filed I-9 form

what to do? To go to canada or not

[Pundit Arjun]

For H1B, your existing H1 status gets extended automatically with a newly approved 797. Also I think between H4 and F1, the status automatically gets switched when F1 expires. However, I am not so sure about AP and H1. i.e. whether H1 can resume if AP becomes invalid. However if Law bench lawyer can help you do that, it might be a good idea to pay him/her and get his services.

p.s. Having said that ... visa and status are two different things. Visa only allows you entry. Status is authorization to stay. Status can be derived from multiple avenues and in some situation can also be switched. But it would be a good idea to get lawyer's help to understand whether in your situation H1 status can be obtained without leaving US.

Meetasn,

I had a chat with my attorney recently due to my upcoming travel. This is what she had to say "We typically advise that if you plan to travel on the Advance Parole, then you should be working on the EAD, not the H-1B. This is because when you re-enter the US on an AP, you are being paroled into the US. You are not being admitted in H-1B status. You could at that point start using the EAD as the basis of your work authorization (having the company update the I-9 in the process) and keep the H-1B as back up in case anything should go wrong with your permanent residency case. ".

I am not doubting your attorney, but I would pay Khanna, Murthy or another experienced immigration attorney for a 15-minute second opinion in this regard. Do keep us updated and hope all will turn well

[dorais]

Meetasn,

I remember this discussion had come in the past.

There are couple of posts by gcseeker. He had referenced Cronin memo, which authorizes one to switch back to H1B. But I would definitely check with an experienced immigration attorney. All the best.

http://www.qesehmk.org/forums/showth...2547#post12547

Okay I think I got the answer finally on the differing opinions and experiences at various forums.Here is the answer copied from one of the forums

There are a substantial number of EB-485 filers who maintain a H-1B status and at the same time possess an Advance Parole. Some of these EB-485 filers may want to travel on Advance Parole rather than on H-1B because of the complication and delay in obtaining the H-1B visa stamp at the visa posts.
* People are confused as to whether they can return to the U.S. using Advance Parole and continue the H-1B employment without EAD. The answer to this question is confusing because the legacy INS flip-flopped itself in the past. Initially, it was policy that such H-1B alien who returns to the U.S. without EAD could not work as he/she was no longer H-1B nonimmigrant and did not have employment authorization. However, this memorandum was short-lived, being later amended and rescinded.
* The current rule is that the H-1B aliens who return to the U.S. using Advance Parole will be able to resume the employment authorization which is inherent in the H-1B status inasmuch as the following conditions are met: (1) The employment is resumed with the same H-1B employer. (2) The H-1B approval must remain valid, even though one does not need a valid H-1B visa stamp. Once the H-1B validity expires, so does the employment authorization. Such an alien cannot continue employment unless he/she obtains either EAD or extension of H-1B status. The H-1B alien returning to the U.S. as a parolee when they use Advance Parole and their status remains a parolee and not a H-1B nonimmigrant, but current rule and policy allow such H-1B approved aliens two benefits pending finalization of its policy on this issue and release of a regulation.