Advance Parole Warning

How exactly do one accrues 'unlawfully presence', can anyone explain this as my current expired H1 states, (I currently am working on EAD) that 'this person was out of status.......' as I was not having the pay stubs from my previous employer when I switched to the current employer, I had to get my H1 stamped from New Delhi instead of here.

Does this notice mean that I was unlawfully present or this is something else, my I-94 was NOT expired, can this be a problem if I am traveling on AP

Anyone in the same boat, and travlled using AP without any problem please respond.

I entered last time on H1 although I had AP as a back up, did not renew the H1 as I was HOPING that I485 will be approved by the time of next vacation and so far no luck.......
 
But what was the date on Old I-94? If that date is valid then you should be OK. Question is have you applied for H1 transfer after expiration of old H1? Give us dates to analyze.
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My old I-94 expiration date was (2002 something) was way ahead when I joined the current employer (new job), my H1 was current with the old employer, he laid me off and did not 'cancel' my H1, after 4-5 months I got this new job applied for H1, INS asked for paystubs I had none, so they approved the H1 and stated 'this person was found out of status...' and I had to go to India for stamping after that I have travelled 2-3 times on the current H1 most recent last year no problems encountered but this time I will be travling on AP, if INS processes the damn thing.....

My question is 'out of status....' is same as 'unlawful presence', Murthy seems to make distinction that they are different....
 
Related Question

I am making a trip to India next month and was planning to use AP as I am using my EAD. My wife however is working on an H1-B visa. Can she use AP to travel and still be on H1 or does she have to start using her EAD? She does not have the H1 visa stamped on her passport as she came here on H4.
Basically, I want to avoid going to the consulate to get her passport stamped in India.

Any thoughts??
 
forum123,

yours is a tricky one. you should consult lawyer's advice. Don't take advice here too serious.

js8309,

you wife can return on AP and remain H1 status.
 
you wife can return on AP and remain H1 status.
Click to expand...

here is the link for th info on murthy.com
http://murthy.com/UDnewins.html

- An H-1 or L-1 holder who entered the United States on advance parole can apply for an extension of H or L status, and the approval of that extension would enable the person to return to the U.S. on H-1 or L-1 status. (To maintain that status, the person cannot seek outside employment[/B]

- An H-1 or L-1 holder who travels out of the United States, and returns on advance parole, is authorized to continue working for the H-1 or L-1 employer. He/she would not be required to obtain an EAD to work for this same employer, within the validity dates of the H-1 or L-1 petition approval.

however, here is the memo itself:
http://www.nafsa.org/content/Profes...esources/ImmigrationAdvisingResources/a12.htm

3. If an H or L nonimmigrant has traveled abroad and reentered the United States via advance parole, the alien is accordingly in parole status. Does this interim rule allow him or her to now apply for an extension of nonimmigrant status?

No. The person was paroled into the United States and, therefore no longer has an H-1 or L-1 nonimmigrant status in the United States to extend or change. As a parolee, the alien must obtain an EAD in order to be employed, regardless of employer. Also parole may be terminated at any time, upon which the alien must demonstrate that he or she is admissible to the United States.

Nonetheless, there is no barrier to the employer requesting an extension of the nonimmigrant visa petition. If the worker-beneficiary’s activities have otherwise been consistent with those of an H-1 or L-1 nonimmigrant, s/he may use an existent nonimmigrant visa or secure another overseas and then reenter the United States as an H or L nonimmigrant. The fact that the worker-beneficiary is an applicant for adjustment will have no effect on admissibility if the traveler is otherwise admissible.

If the worker was seeking readmission as an H-1 or L-1 nonimmigrant but was erroneously paroled, the admission may be corrected if appropriate [See Inspectors Field Manual 15.12 "Correction of Erroneous Admissions"].


I am confused now...:confused: :confused:
 
H1b/ out of status and LPR

Pl. check link:
http://uscis.gov/graphics/shared/howdoi/h1b.htm#status;

The following are eXcerpts:
Who can an H-1B alien work for?

H-1B aliens may only work for the petitioning U.S. employer and only in the H-1B activities described in the petition. The petitioning U.S. employer may place the H-1B worker on the worksite of another employer if all applicable rules (e.g., Department of Labor rules) are followed. H-1B aliens may work for more than one U.S. employer, but must have a Form I-129 petition approved by each employer.

What if the alien’s circumstances change?

As long as the alien continues to provide H-1B services for a U.S. employer, most changes will not mean that an alien is out of status. An alien may change H-1B employers without affecting status, but the new H-1B employer must file a new Form I-129 petition for the alien before he or she begins working for the new employer. The merger or sale of an H-1B employer’s business will not affect the alien’s status in many instances. However, if the change means that the alien is working in a capacity other than the specialty occupation for which they petitioned, it is a status violation.

Must an H-1B alien be working at all times?

As long as the employer/employee relationship exists, an H-1B alien is still in status. An H-1B alien may work in full or part-time employment and remain in status. An H-1B alien may also be on vacation, sick/maternity/paternity leave, on strike, or otherwise inactive without affecting his or her status.

Can an H-1B alien travel outside the U.S.?

Yes. An H-1B visa allows an alien holding that status to reenter the U.S. during the validity period of the visa and approved petition.

Can an H-1B alien intend to immigrate permanently to the U.S.?

Yes. An H-1B alien can be the beneficiary of an immigrant visa petition, apply for adjustment of status, or take other steps toward Lawful Permanent Resident status without affecting H-1B status. This is known as "dual intent" and has been recognized in the immigration law since passage of the Immigration Act of 1990. During the time that the application for LPR status is pending, an alien may travel on his or her H-1B visa rather than obtaining advance parole or requesting other advance permission from the Immigration to return to the U.S.
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I hope above clarifies some of the confusions.
 
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