Advance parole with H1B status???

[axa901]

Hello!

I am an Indian citizen getting married to an American citizen in a couple of weeks. My current immigration status is H1B and we are planning to file the I-130 and I-485 forms together.

The H1B visa stamp in my passport will be expiring in 2 months, although my status will be valid as my I-797 is valid for another 2 years or so. So, from status perspective, I will be okay but if I travel outside US, I will need to get another visa stamp on my passport. I want to avoid going through the visa application process outside US. Can I apply for the advance parole along with I-130 and I-485 that will allow re-entry after short travel outside US? Do I need to also apply for an EAD, if I am applying for an advance parole even though my H1B status is valid?

Also, it will be very helpful if someone can give an idea on how long it takes to get the advance parole as we are planning a trip abroad.

Many thanks.
Aakash

 

[austriacus]

axa901, welcome to this forum!

Congratulations on your upcoming marriage. Technically, when you use AP to return, you do not return in H-1B status but rather as a parolee. USCIS has changed guidance for this case over time and my understanding is the most recent memo on this is the Cronin memo (google it!).

My understanding is that under this guidance, it allows those who return to their H-1B employers to continue to work under the original authorization of their H-1B, even though technically they are parolees and not in H-1B status. The only time this will become an issue is if your I-485 is not approved, you don't have a valid nonimmigrant status to fall back on; or if USCIS changes their guidance on this gray area of the law. However, parolees who were H-1Bs are also allowed to file for extension of H-1B to get their H-1B status back.

In my opinion, it would be "safer" if you have both, AP and an H-1B visa stamp. Get AP in case you leave and can't get the H-1B visa; but try to get the H-1B stamp when you're outside the country so you can re-enter in H-1B status. If you have both, you would preferably use the H-1B visa stamp. AP is free with the I-485 so might as well apply for it, and EAD too.

The other advantage of traveling with an H-1B visa is that, I think, most recently they allowed H-1Bs to travel right after they filed for AOS, not requiring them to wait for their I-485 receipt notice anymore.

 

[axa901]

Thanks Austriacus. Your answer helped me in understanding the issue better. I also looked at the Cronin Memo.

I guess the safe thing would be to have both- the advance parole as well as the stamp.

 

[boatbod]

Thanks Austriacus. Your answer helped me in understanding the issue better. I also looked at the Cronin Memo.

I guess the safe thing would be to have both- the advance parole as well as the stamp.

Yes. Despite having EAD and AP, I maintained my H1B right up until my (EB) I-485 was approved. Never encountered any problems traveling - just the usual "who do you work for" question, which was always fun answering since my H1 sponsor had been bought out by another company.