Can I travel with AP but I-140 pending

[user128816]

Please advice me if I, my wife and my son can travel on AP with I-140 pending.

my passport doesn’t have any H1B stamping from company "B" as I never went to India ever since I joined "B", i.e. the only H1B stamping I have is from my previous company "A", which is now expired.

Thanks & Regards

[txh1b]

Yes you can but you become a parolee and would need EAD to work. If I140 gets denied, consider yourself screwed.

[user128816]

Thanks for info.

My wife and I have valid EAD till Oct 2010. Currently I am working on H1B which is valid till Jan 2010. My wife and son are planning to go India for vacation in Jun 2009 and planning to return USA in Aug 2009. Is it ok if only my wife and kid travel on AP? In this case, Do I need to change my status from H1B to EAD? Please advise.

Thanks & Regards

[txh1b]

You can remain on H1b and they become parolees. But the opposite is not possible.

[swetharao]

Yes, you can travel using AP and still can use H1B.

I travelled using my AP (my I140 is still pending) and I did extend my H1b after I came back. Until you use your EAD, you can use your H1B with AP.

Thanks,
Swetha

[txh1b]

Yes, you can travel using AP and still can use H1B.

I travelled using my AP (my I140 is still pending) and I did extend my H1b after I came back. Until you use your EAD, you can use your H1B with AP.

Thanks,
Swetha

There is more to it than this simple explanation.

It is a complicated case and not a simple one to answer or blow it off saying you are a parolee but not on H1b. The effect of this type of entry is still the same. You are a parolee and not on H1b. Read on.....

If a person that holds H1b status enters on AP, the person does not hold a "status" based on the entry I-94 document which provides one proof of status. Also, the I-94 is issued for 1 year.

Though, work for a H1b holder is allowed even if one enters on AP based on the H1b approval, it is not a law but a guidance issued back in 2000 or so. This is the tough part. USCIS guidance cannot be construed upon as a law and it is always a good idea to have EAD for the period of authorized employment even if working for the same H1b sponsor.

When a person enters on AP, the person can just use the H1b approval document as an authorization to work in lieu of the EAD as per the memo. This is risky like I have pointed out earlier as it is just a guidance.

One could choose to get back on H1b status if a renewal/transfer is filed after the entry on AP or if one gets a H1b stamp and re-enters. This is essentially the last action rule in effect. Talk to an attorney as it is not as simple as you thought it is.