Advance Parole and H-1B

[PAforGC]

Different lawyers have different opinion on this issue. See the Q&A here:

Q: I was a H-1B holder, and used my Advance Parole to reenter the U.S. Do I lose my H-1B status and become I-485 pending?

A: If you resume your employment with the same employer for whom you had previously been authorized to work as an H-1 nonimmigrant without using your EAD, you can still keep your H-1B work authorization. Furthermore you can still apply for an extension of H-1B status. However, if after being paroled in, you change employers or work for your current employer with your EAD, you no longer have a valid H-1B nonimmigrant status, even though you can still lawfully stay in the U.S. during the I-485 pending period.

It is from http://www.hooyou.net/advanceparole/faq.html.

I heard that the above opinion is based on a USCIS memo, although I don't know where to find it.

PAforGC

Acc to big shot lawyer from Manhattan, I should not use AP to re-enter US if I want to maintain my H1b status. Acc to her, if immigration clerk at POE does not agree with Lamonte, he/she has a technical point and no lawyer would be able to defend the case. However, they say - - ignorance is bliss and most of immigration officials donot read these posts -!!

RHTK

 

[jllag1]

This is a good informational thread.
After reading through I am still not very clear about what is the right thing to do. The interest here is mainly due to the following situations.

1. An alien goes back to the native country with an expired H1/H4 stamping but has a fresh H1/H4 approval notice and also a valid EAD/AP. while returning back he has two choices, either to use the AP to enter US or go to the US consulate and get the fresh H1/H4 stamping. The whole concern here is the hassle of going to the US consulate for stamping and also the money involved (its just $100 but still its a lot atleast for me). So the best thing to do is use the AP. This is where the confusion is. If the Alien uses the AP then it seems he will no longer be on H1/H4 and would be on EAD.

--> If you use AP to enter US, you are considered parolled. Technically, you cease to be in H1 status. But as per many a few lawyers, H1 being dual intent, you DO NOT HAVE to use EAD to work for your (and only) H1 sponsoring employer. Even if you use EAD, as long as you work ONLY for your H1 sponsoring employer, you can still file for H1 extensions. If you do start working for any other employer, you have to use EAD and you effectively cease to be in H1 status at that point. To avoid any hassles, use H1 visa to enter US and not use AP/EAD to absolutely maintain H1 status.

2. If the Alien uses the EAD instead of the H1/H4 and at the smae time the I140 is still pending then the Alien is running a huge risk. If the I140 is denied for some reasons then the Alien would immediately become out of status. How can this be avoided? what is the right thing to do, why is it not possible to go back to your original H1/H4.

--> I was on H1 and my wife was on H4. She started working on EAD before AOS. At that point, even though I was on H1, she effectively became a parolee. If anything had happened with AOS, she would have to leave US immediately and enter US on H4 stamp. Note, this luxury is only applicable to H4. Once you let H1 lapse, it is not a simple matter to just go to a US consulate to get H1 stamp, H4 on the other hand, does not need prior permission from USCIS (and there are no max numbers for it).

3. Now reference to the Spouce Visa (H4). Is it possible that the Spouse be on EAD and you remain on H1. In other words if the Spouse goes to native country alone and returns using the AP and the Alien himself/hersefl reamins on H1, how does it matter? Is there any issue to be worried upon.

--> See above.

4. If the Alien uses the EAD and now wants to change his job and wants to go on H1 again (dont know why but so many people want to do that). Is that possible.

--> Once you let your H1 lapse, you will need to reapply for H1 and be counted against the cap.

If someone has clear answers to the above 4 situations then I guess the AP EAD and H1/H4 problem is resolved. I will talk to my lawyer today and post the findings. any other findings would also help.

neocor

 

[lamonte]

Lamonte, please note it down.

Ah.... for crying out loud!

Chat User : Can one continue to work on H-1 after using advance parole to travel? Thanks.

Attorney Murthy : One may not only continue to work on the H1B, but one may also file an extension of the H1B even after having entered on the AP. The problem is that there are no USCIS regulations on the dual intent issues. We only have Legacy INS Memos on this subject from March and May 2000 with the second Memo of May 2000 superseding many sections from the earlier Memo. Generally, a person is allowed to file an H1B extension as long as s/he continues to work for the H1B sponsoring employer even if s/he previously used the EAD or entered on the AP.

Do you want me to post the actual memo? Will you believe me then?

 

[kim750]

......H1 is valid as long as one returns to his original employer (where H1 is based on). QUOTE]

I have a question here:

I understand that I can keep my current H-1b legally after reentrance by using AP, but What if later I tranfer to another employer, which will apply new H-1 for me? Am I be fine to keep the legal new H-1? Thanks for any reliable info.

-----------

That's what my lawyer told me. You can use AP for entry and return to work for your original employer and your H1b would not be affected. Then you can start transferring H1B for another company. However, I recommend consulting a lawyer about this issue.

 

[dabuk]

Using AP does not invalidate your H1-B. At the POE tell the officer that you want to be on H1-B ( better have a notice of approval ) and show him your AP he will write the I-94 to expire whenever your H1-B expires and not AOS so that you will be fine on H1-B. I did last November.

This, if true is a big relief. Basically, I don't have visa dates in India, so, by what you say one can choose to enter either as a Parolee or as a non-immigrant BASED ON AP ITSELF! I had always assumed that if you show the AP, and don't have a valid H1B visa, merely showing the I-797 will not entitle you to continue on your H1 status.

I thought one has to explicitly enter on an H1 visa to have H1 status.Cool, so does this mean that my wife can do a change of status (H to H4)at the POE as well? I mean if I show my I-797 and say that she's along with me, by the very fact that her I-94 now has my validity dates, would she not be "automatically" switched to an H4 status?

 

[eb1doc]

I kow one INDIAN who used AP to reenter and used approved H1B papers for I-94 after returing from INDIAN and POE minneapolis.

So that means H1B is valid for his work!!!?