I currently work under an H-1B with my employer, but in the meantime, I submitted an I-485 under the EB-5 program and received an AP and an EAD. I’m planning an international trip soon and will return with AP (not activate EAD).
In this case, if my EB-5-Based I-485 is rejected for some reason, do I still have valid employment authorization to work for my employer? For example:
1. If after AP re-entry, my I-485 was rejected. Do I need to work with my employer for any H-1 B extension while filing Form I-290 B?
2. If knowing the 485 was rejected during my international trip, is it possible to use AP within 18 days, or can I apply for an H1B visa?
Answers
Tony W. Wong
EB-5 Immigration attorneysI would suggest you use your H-1B visa to re-enter the U.S. instead of AP because H-1B visa allows you to enter the U.S. and continues your I-485. However, if you use AP to enter the U.S., procedurally your status will be DA, not H-1B, that means in case your I-526E is denied and you may lose your lawful status.
Natalia Morozova
EB-5 Immigration attorneysThank you for your question. If you travel on AP you change your status from H1B to Parolee. To maintain your H1B status you have to remain in US, adhere to specifics of your H1B visa and speak to your employer about timely extensions of the H1B. If your green card is denied speak to an immigration attorney to discuss best option between refiling and resubmission. If you have further questions please contact us.
Lynne Feldman
EB-5 Immigration attorneysIf I-485 is rejected, then EAD and AP are invalid and you need to return in H-1B status (if visa is not valid will need new visa.
Dennis Tristani
EB-5 Immigration attorneysThe safest and most conservative option would be to not use AP and maintain your H status.
If your 526/485 is denied after entering during AP, you would be out of status. You could reapply for H status and depart/reenter the U.S. or potentially refile a concurrent 526/485 making use of section 245k.
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