border confusion

This forum deals with all aspects of immigration to the United States, including visa types, general immigration issues, and U.S. immigration topics.

Moderator: Jim Eiss

Post Reply
diane1
Posts: 16
Joined: Thu Jul 20, 2006 1:17 pm

border confusion

Post by diane1 » Wed Jan 02, 2008 10:21 am

FOr the first time in 9 years of crossing, I had a problem. I went through Pearson PFI on Monday and had in hand my newly minted Canadian Passport, my approval notice for my H1B extension (8th year and the 7th had expired while I was in Canada) and my AP approval. I showed all of this to the officer and said that I wanted to enter in H1B. She told me I had to go to the back because she didn't have the stamp. I went to secondary with my little folder and an officer took it from me, took my picture and prints and told me to sit down and wait. As I watched the clock tick up to my boarding time, I waited. I was called up and asked if I had filled out the I94 he gave me. I said that I hadn't recevied it and he gave me one and told me to sit down and fill it out. Two minutes later and I was back at the counter as he was stamping my passport (in the middle! why not the first page!). As he finished that I asked about my H1B status. He got a bit stern and told me that I should have asked for that if that was what I wanted. I did not tell him that I had not told him a bloody thing, that I did tell that to the first officer and that he had that approval form in front of him. He and the other officer conferred and, since I could only enter in one, told me to choose. Now, I will admit that I had no idea that AP was a status and that I could not use both, I had no frickin idea. I asked what the consequences were of choosing one over the other and was told to ask my lawyer. It was 6:30 in the morning. I asked if entering in H1B instead of AP would affect my pending 485 and was told no. I said H1B. He crossed out the AP stamp and wrote "she wants H1B" over it. They did the H1B stamp and sent me off. I ran as fast as my out of shape body could and just missed the flight so I had 4 hours to stew about it. I eventually talked to my lawyer who said that either would have been fine. I write this long story to share an experience and also to ask...why can't you be parolled into the US AND be in H1B status? Did I do the right thing?

nelsona
Posts: 15980
Joined: Wed Oct 27, 2004 2:33 pm
Location: Nowhere, man

Post by nelsona » Wed Jan 02, 2008 11:50 am

Each time you enter the US, you are entering on some status. If you don't enter on H1, then you are not on H1. If you enter with AP your official status is "Parolee".

Some -- like your lawyer -- take the position that entering on AP means you are entering on your previous status. This, to me does not make sense, otherwise, a TN entering with AP would still be TN, which is not the case. What i think these may be confusiong is that entrty on AP does not CANCEL your H1, but allows you at some point to return to it (presumably be submitting an I-539 or re-entering). It may also be because non-Cdns get not only H1 status, but also an H1 VISA in their passport, which remains valid even after entry on AP.

I'm on my 8th year as H1 and have had AP for 4 years. I have NEVER shown my AP, since to do so, in my opinion, would mean that I wish to work using my EAD, and no longer use my H1. I do sometimes carry my AP in case my AOS gets approved whilke out of the country, or if the CBP decides to refuse me entry on my existing H1, but I've never shown it.
Nelsona Non grata. Non pro. Search previous posts. Happy Browsing :D

nelsona
Posts: 15980
Joined: Wed Oct 27, 2004 2:33 pm
Location: Nowhere, man

Post by nelsona » Wed Jan 02, 2008 12:29 pm

from http://www.murthy.com/chatlogs/chat0108_P.html

"blood : If one enters U.S. on Advance Parole while H1 extension is approved is he in valid H1 status?

SPEAKER_Attorney_Murthy : Depends on which was approved last. If the H1B were approved last, then that would supersede."

So, like I said, AP does not cancel your ability to have and use H1, but it is governed buy 'last action' which for H1 would have to be h1 approval or entry on H1.

You were absolutely right to enter on h1; showing your AP was the questionable tactic.
Nelsona Non grata. Non pro. Search previous posts. Happy Browsing :D

diane1
Posts: 16
Joined: Thu Jul 20, 2006 1:17 pm

clarity

Post by diane1 » Wed Jan 02, 2008 12:30 pm

Okay. So now it makes sense. The AP will stay in my pocket from here on out. Here is the source of my confusion. The attorney on my case was on maternity leave. As the approvals came in, they sent them to me with a cover letter explaining what i was to do with them. The firm's owner signed off on the letters but apparently didn't read them or make any effort to cross reference them. I got an apology (but would rather take a discount in fees!) I let down my guard and trusted the law firm.

Post Reply