Re-entry to US: H1B or AP

[buffalo434]

For someone who changed status to H1B from within the US, but does not have H1B visa stamp, and has a pending I-485+AP+EAD:

Getting an H1B visa stamp requires a visit to US consulate. Can doing that cause abandonment of the pending I-485?

Is it better to use AP and give up on the H-status, or is there a way to save both H1B and pending I-485? Has anyone experienced a similar situation?

[scientist2016]

(1) No.
(2) There is no better way. Retaining H1 helps you in case the I485 is denied. Is that worth the extra hassle of a consulate visit and visa appointment, is a personal choice. H1 being a dual intent visa, can be held even when your I485 is being processed.

[buffalo434]

Thanks for the reply!

I am wondering, did you do that?

Applying for H1B visa stamp isn't a hassle at all, I just want to be careful: I want to make sure I am not going to harm my pending I-485, and if possible, I'd prefer to keep H1B.


To give a bit more background: I read from a DIY I-485 manual (prepared by an immigration lawyer who won't answer questions unless I hire them for I-485, paying $2000-3000...) that undergoing a consular processing for H1b abroad will risk the abandonment of my pending I-485, but I couldn't be not sure whether this is referring to change of status, or just the visa stamp for someone who is already in H1b status.

[ngjaxguy]

I have my 485 pending and I am currently on H1b. Last year I went outside of country and came back with out H1 visa stamping. I used my AP.

after coming back, I asked my attorney at work if I need to change my status from h1 to EAD and they said no. I can continue to work on h1 even though I used ap.

so if you are planning to go out side of country then make sure you have ead and AP approved just in case if you don’t get h1 visa stamp in timely manner.

this is just my personal opinion. Always better to consult lawyer :-)

[Enub4]

ngjaxguy I didn't know that you can enter with AP and still be considered as H1b. I think I read that once you enter with AP you are in AOS.

[buffalo434]

Enub4 I read about it here as well (in the "Parolee may Work for H1B (or L-1) Employer without Valid EAD" section)

[ngjaxguy]

Please read these and let me know your thoughts. I will also double check with my attorney at work. Thank you Enub4

https://www.hooyou.com/advanceparole/h1bv-ap.html

https://www.******.com/2008/03/21/ef...pending-i-485/

[Enub4]

From what I read on those links:
- if you enter with AP you enter as parolee
- even if you enter with AP you can work with H1b (even with no EAD) if you work with same company until H1b expires
it looks like not a big difference.