Switching between AP and H1 and the role of EAD

[srimurthy]

USCIS calls this "open-market employment". Any clues for finding an answer to this question are in the updated Cronin memo that was meant to address only AP. Note that at different places different interpretations are given. USCIS had incorporated this memo into their "Field Manual".

Here?s the strongest defense for your case.



USCIS made it clear that if you leave the H1B employer, then you violate H1B.

Idliman thanks for trying to and stepping into the big shoes of Kanmani.

I have a question around travel, say one has applied for AOS and has EAD and AP but was maintaining H1. If they travel outside of the country and decide to come back on AP just to avoid going to the consulates for H1B stamping (especially in this situation of Embassies and Consulates closed, after returning can they still work and continue using H1 and apply of H1 extensions when it is nearing expiration?

[idliman]

Idliman thanks for trying to and stepping into the big shoes of Kanmani.

I have a question around travel, say one has applied for AOS and has EAD and AP but was maintaining H1. If they travel outside of the country and decide to come back on AP just to avoid going to the consulates for H1B stamping (especially in this situation of Embassies and Consulates closed, after returning can they still work and continue using H1 and apply of H1 extensions when it is nearing expiration?

Chief,

Per updated Cronin Memo, if you do not use EAD for work you are maintaining Non-Immigrant status. If you use AP, your status becomes "DA / Parolee", but USCIS still recognizes and allows you to extend non-immigrant status (H1 / L1). If you enter with a H1B/L1 stamp, you don't need AP and I485 is not abandoned (as defined in law INA 8 CFR Section245.2(a)(4)). Otherwise you need AP to make sure that you do not abandon your application.

I have entered using AP and was maintaining H1B. Recently H1B was also extended. So no issues. But to be on safe side, avoid travel on AP when an AP application/renewal is pending (unless it is absolutely necessary). USCIS have gone back and forth on this issue. But as of now USCIS will not cancel AP if you travel with pending AP application. If you absolutely have to travel with pending AP, always check the latest stance of USCIS on this topic.

[may2011]

Chief,

Per updated Cronin Memo, if you do not use EAD for work you are maintaining Non-Immigrant status. If you use AP, your status becomes "DA / Parolee", but USCIS still recognizes and allows you to extend non-immigrant status (H1 / L1). If you enter with a H1B/L1 stamp, you don't need AP and I485 is not abandoned (as defined in law INA 8 CFR Section245.2(a)(4)). Otherwise you need AP to make sure that you do not abandon your application.

I have entered using AP and was maintaining H1B. Recently H1B was also extended. So no issues. But to be on safe side, avoid travel on AP when an AP application/renewal is pending (unless it is absolutely necessary). USCIS have gone back and forth on this issue. But as of now USCIS will not cancel AP if you travel with pending AP application. If you absolutely have to travel with pending AP, always check the latest stance of USCIS on this topic.

Hi,

Thanks for sharing your experience. So you could extend H1B and use AP .Thats good to know.

a)Did you face any issues for H1B visa stamping after having and EAD/AP? I understand that H1B is a dual intent visa.Was just curious if having an EAD/AP results in additional scrutiny wrt intent of living in US.

b)Do you hire a lawyer for renewing your EAD/AP? Is EAD/AP subject to new regulations like wage levels etc?

[idliman]

Hi,

Thanks for sharing your experience. So you could extend H1B and use AP .Thats good to know.

a)Did you face any issues for H1B visa stamping after having and EAD/AP? I understand that H1B is a dual intent visa.Was just curious if having an EAD/AP results in additional scrutiny wrt intent of living in US.

b)Do you hire a lawyer for renewing your EAD/AP? Is EAD/AP subject to new regulations like wage levels etc?

a) I don't have a H1B stamp. Just used AP. H1B renewal is done by company attorney. You will get provide the I-94 of the last "DA/Parolee" admission and USCIS will issue a new I-94 (same I94 number) with extended validity for the duration of H1B. No issues.

b) We have always renewed EAD/AP by myself (guess 6 times since 2012) and do not show it to the company side. Spouse just stays on EAD/AP. For advantages of AOS Pending vs H4 status see previous post. Please look at the EAD template thread for sample and all details.

Don't complicate things. H1 and AOS pending are two separate status'es. Company maintains H1B status and the individual maintains AOS pending status (Supp J requires company attestation for bona-fide job offer part).

[may2011]

a) I don't have a H1B stamp. Just used AP. H1B renewal is done by company attorney. You will get provide the I-94 of the last "DA/Parolee" admission and USCIS will issue a new I-94 (same I94 number) with extended validity for the duration of H1B. No issues.

b) We have always renewed EAD/AP by myself (guess 6 times since 2012) and do not show it to the company side. Spouse just stays on EAD/AP. For advantages of AOS Pending vs H4 status see previous post. Please look at the EAD template thread for sample and all details.

Don't complicate things. H1 and AOS pending are two separate status'es. Company maintains H1B status and the individual maintains AOS pending status (Supp J requires company attestation for bona-fide job offer part).

got it! thanks for the link!

[montyp80]

Asking this for a friend, your inputs will be helpful, Gurus:

Friend of mine is currently in India.
1. He has valid H1 extension approved till Sep 2023, but current H1B stamp on the passport is expired.
2. He applied for AOS/EAD/AP in Oct 2020 and got his EAD/AP in March 2021 (PD December 2011, EB2)
3. His wife is in the US, currently working on H4EAD (expiring December 2022) and recently got another job offer which she's planning to take up as well

Queries:
My friend is planning to enter the country on AP and planning to continue to work on H1B
1. If he enters on AP, can his wife continue to work on H4 EAD?
2. Might be a silly question but can his wife work with two different employers at the same time, using H4EAD with Employer 1 and GCEAD with Employer 2?
3. From the sounds of it, #2 seems complicated, so what would be ideal for her to use for both employment, H4EAD or GCEAD?
4. If she uses GCEAD, will it have any impact on her husband's plan to work on H1 after entering the country on AP?

[idliman]

Asking this for a friend, your inputs will be helpful, Gurus:

Friend of mine is currently in India.
1. He has valid H1 extension approved till Sep 2023, but current H1B stamp on the passport is expired.
2. He applied for AOS/EAD/AP in Oct 2020 and got his EAD/AP in March 2021 (PD December 2011, EB2)
3. His wife is in the US, currently working on H4EAD (expiring December 2022) and recently got another job offer which she's planning to take up as well

Queries:
My friend is planning to enter the country on AP and planning to continue to work on H1B
1. If he enters on AP, can his wife continue to work on H4 EAD?
2. Might be a silly question but can his wife work with two different employers at the same time, using H4EAD with Employer 1 and GCEAD with Employer 2?
3. From the sounds of it, #2 seems complicated, so what would be ideal for her to use for both employment, H4EAD or GCEAD?
4. If she uses GCEAD, will it have any impact on her husband's plan to work on H1 after entering the country on AP?

See below:

1. When one enters on AP and works for the H1B employer with a valid H1B petition, the H1B status is dormant. Your status will reflect "DA / Parolee / AOS Pending". You will be given a I-94 with only one year validity at the port of entry after secondary inspection. But USCIS has clarified that when you renew your H1B nonimmigrant status, you will come back to H1B status. Till you renew or amend H1B, you will be a "DA/Parolee". This is valid as long as you are working with the underling H1B petition validity. Please note the fineprint: The I-131 (AP) should be valid for the entire duration of travel. You cannot mail an approved AP to someone outside USA and ask them to use it to re-enter the country.
2. Because the primary is still working with H1B petition for the same employer, the H4 EAD which is dependent on H1B status is still valid. No probelm with working on H4 EAD. However, I don't see the reason why someone should work with H4 EAD. AOS EAD is better and costs no money. Look in our EAD thread on the benefits of AOS EAD.
3. No. The dependent has to use either the H4 EAD or AOS EAD. If she uses both, then latest EAD status will be active. My advice is not to make your lie complicated and give opprtunites for USCIS to mess it up. I will pick AOS EAD and use it for everthing. It comes with a automatic 180 day extension too.
4. Already explained in #2. See EAD forum thread for explanation.
5. No. Dependent will not have any issue using AOS based EAD. It will be active as long as AOS is pending. There is no need to pay money to renew H4 and H4 EAD. AOS EAD is protected by law and free (look in DIY renewal EAD/AP forum). Whatever the dependent does will not have an effect on primary. But if primary uses EAD for work, H4 and H4 EAD will immediately cancel. So primary needs to be extra careful and make sure that there is an approved AP before traveling outside the country.

[montyp80]

See below:

1. When one enters on AP and works for the H1B employer with a valid H1B petition, the H1B status is dormant. Your status will reflect "DA / Parolee / AOS Pending". You will be given a I-94 with only one year validity at the port of entry after secondary inspection. But USCIS has clarified that when you renew your H1B nonimmigrant status, you will come back to H1B status. Till you renew or amend H1B, you will be a "DA/Parolee". This is valid as long as you are working with the underling H1B petition validity. Please note the fineprint: The I-131 (AP) should be valid for the entire duration of travel. You cannot mail an approved AP to someone outside USA and ask them to use it to re-enter the country.
2. Because the primary is still working with H1B petition for the same employer, the H4 EAD which is dependent on H1B status is still valid. No probelm with working on H4 EAD. However, I don't see the reason why someone should work with H4 EAD. AOS EAD is better and costs no money. Look in our EAD thread on the benefits of AOS EAD.
3. No. The dependent has to use either the H4 EAD or AOS EAD. If she uses both, then latest EAD status will be active. My advice is not to make your lie complicated and give opprtunites for USCIS to mess it up. I will pick AOS EAD and use it for everthing. It comes with a automatic 180 day extension too.
4. Already explained in #2. See EAD forum thread for explanation.
5. No. Dependent will not have any issue using AOS based EAD. It will be active as long as AOS is pending. There is no need to pay money to renew H4 and H4 EAD. AOS EAD is protected by law and free (look in DIY renewal EAD/AP forum). Whatever the dependent does will not have an effect on primary. But if primary uses EAD for work, H4 and H4 EAD will immediately cancel. So primary needs to be extra careful and make sure that there is an approved AP before traveling outside the country.

Thank you for the response in detail, Idli.

Great thread with tons of information

[Octgc7]

we have a valid H1/H4 till October 2022, We have received EAD AP valid till August 2023 .
Our US visa is expired . If we need to travel to India what all documents to carry

1. Our USC Kids BC
2. Our Approved I797s for EAD/AP , H1/H4
3. Actual Cards
Is that enough ?

Important question i wanted to ask is should we return the I94 on the H1/H4 i797 at the US airport when we go to India(onwards travel) ?
Will we get a new I94 based on our AP ?
Will the new I94 valid till EAD/AP validity date ?

Can i use that I94 for H1 extensions ?

[gammaray]

we have a valid H1/H4 till October 2022, We have received EAD AP valid till August 2023 .
Our US visa is expired . If we need to travel to India what all documents to carry

1. Our USC Kids BC
2. Our Approved I797s for EAD/AP , H1/H4
3. Actual Cards
Is that enough ?

Important question i wanted to ask is should we return the I94 on the H1/H4 i797 at the US airport when we go to India(onwards travel) ?
Will we get a new I94 based on our AP ?
Will the new I94 valid till EAD/AP validity date ?

Can i use that I94 for H1 extensions ?

I am assuming travel is post Nov 8 when all the travel restrictions are removed for fully vaccinated folks. In which case you don't have to worry about birth certificates and such. Since your visa foil is expired it goes without saying that AP card is required, wouldn't hurt to carry the I979 as well.

Yes the new I94 for the I797 can be returned at the airport. On the return when you use the AP the new I94 will have a 1 year validity.

After return if you are rejoining the original employer then you or the employer don't have to do anything and you can continue working like you were on the h1b. The employer can continue to file for h1b extensions like normal. When the h1b extension is filed and approved your status will change back to h1b from a Parolee.

[Octgc7]

I am assuming travel is post Nov 8 when all the travel restrictions are removed for fully vaccinated folks. In which case you don't have to worry about birth certificates and such. Since your visa foil is expired it goes without saying that AP card is required, would hurt to carry the I979 as well.

Yes the new I94 for the I797 can be returned at the airport. On the return when you use the AP the new I94 will have a 1 year validity.

After return if you are rejoining the original employer then you or the employer don't have to do anything and you can continue working like you were on the h1b. The employer can continue to file for h1b extensions like normal. When the h1b extension is filed and approved your status will change back to h1b from a Parolee.

Thank you appreciate the response , now i am clear that i will get a new i94 with 1 year validity but i can continue on that(beyond a year and till expiry of combo card ) if i swith to EAD job right ?

I hear conflicting answer regarding returning of i94 in H1 I797 , If someone can share their experience that would be helpful.

[gammaray]

Thank you appreciate the response , now i am clear that i will get a new i94 with 1 year validity but i can continue on that(beyond a year and till expiry of combo card ) if i swith to EAD job right ?

I hear conflicting answer regarding returning of i94 in H1 I797 , If someone can share their experience that would be helpful.

Yes once you are admitted as a "parolee" and/or start using the AOS EAD the I94 is not critical as it would be on any non-immigrant status, since the pending AOS grants authorized stay irrespective of the date on the I-94. You can continue to work till the validity of the EAD/AP and renew it timely.

Also, just to clarify, when admitted under Parole, you can also continue to extend your h1b like normal (which is recommended). I think this is the case even if the I94 has expired which it will be since the new I94 will only be for a year and the current h1b expiry is beyond that date. Don't believe you are bound by the I94 date for h1b extension if you are in Parole status, just the current h1b expiry date. I would confirm that with your lawyer.

Other folks can chime in, but I don't see why you would want to hold on to the new I-94. The I-94 comes with a section that you keep for yourself and one that is supposed to be handed out for departure records. Given the various databases (USCIS, homeland security, ICE, and what not) why would anyone not want to ensure the new I-94 is recorded correctly everywhere. All that does, imo, is to make sure that the correct new I94 is input in whatever database so that it shows that you were in legal non-immigrant status when you exited the country and did not overstay (which would be be the case if the old I94 date remains in the system). It should have no bearing on reentering using a different mechanism (AP).

[Octgc7]

Yes once you are admitted as a "parolee" and/or start using the AOS EAD the I94 is not critical as it would be on any non-immigrant status, since the pending AOS grants authorized stay irrespective of the date on the I-94. You can continue to work till the validity of the EAD/AP and renew it timely.

Also, just to clarify, when admitted under Parole, you can also continue to extend your h1b like normal (which is recommended). I think this is the case even if the I94 has expired which it will be since the new I94 will only be for a year and the current h1b expiry is beyond that date. Don't believe you are bound by the I94 date for h1b extension if you are in Parole status, just the current h1b expiry date. I would confirm that with your lawyer.

Other folks can chime in, but I don't see why you would want to hold on to the new I-94. The I-94 comes with a section that you keep for yourself and one that is supposed to be handed out for departure records. Given the various databases (USCIS, homeland security, ICE, and what not) why would anyone not want to ensure the new I-94 is recorded correctly everywhere. All that does, imo, is to make sure that the correct new I94 is input in whatever database so that it shows that you were in legal non-immigrant status when you exited the country and did not overstay (which would be be the case if the old I94 date remains in the system). It should have no bearing on reentering using a different mechanism (AP).

Thanks , appreciate the response.