Advanced Parole Delay work around, Is it Legal !!

7

7thyearext

Registered Users (C)
Hi all,

Here is the situation. My visa is expiring in july 04. I have my 6 years on h1-b expiring in sep 04. I have filed concurrently for I-140/ I-485 in june 03 1st week. Am applying for 7th year ext in priminum processing. My wife has applied for Advanced parole in Nov 03 1st week. She is currently working on EAD which is valid till july 1st week.

We want to go to india in summer.

Now the questions:

Since AP is taking 6 months and am not sure when she would get it.

-- Can she apply for H4 for her along with my 7th year ext.
-- If yes what happens to her EAD then. Is it still valid
-- Would it be a problem for her to get visa to enter the US.

Thanks a lot for your replies.
 
is it possible?

Can one apply for H4 if the current status is EAD? one is immigrant class and the other non-immigrant. I got some responses few months back saying that status cannot be changed by being in the country. Let us wait for few more responses.
 
rajudm

I was talking to my attornet and she said that it was legal. But I just wanted to make sure as this forum has people with more experience in twisted cases :eek:) then the attorney can ever come across in his/her entire carrer. So let wait and see if some one has any answers or suggestions
 
Check b), you will get the answer.

--------------------------------------------------------------------------------
INS Guidance on H-1 / L-1, EAD and Advance Parole

a) If an H-1 or L-1 holder decides to file for and obtain the EAD but keeps working for the same company, he/she is still in valid H-1 or L-1 status and able to extend the H-1 or L-1 as needed (up to the maximum allowable time on that status). The mere fact of obtaining the EAD does not affect one's status; only if the person uses the EAD to take on another job, would he/she no longer be considered to be maintaining H or L status.

b) If a person obtained an EAD and then went to work for another company while waiting for the completion of her/his adjustment case, that action would effectively terminate the H-1 or L-1 status of the beneficiary and she/he would have to file for advance parole to travel. The H-1 or L-1 holder would not be able to renew the H-1 or L-1 status in this situation.

c) 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.)

d) 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.

e) If an H-1 or L-1 holder presents both advance parole documents and documents of valid H-1 or L-1 status at the port of entry to the U.S., the INS Inspector should tell the person that she/he is not required to present the advance parole, and admit the person to the U.S. on the H-1 or L-1 status.

f) An H-1 or L-1 holder who has entered the U.S. with an advance parole document may depart and return as an H-1 or L-1 holder if that status has not expired.
--------------------------------------------------------------------------------
 
Last edited by a moderator:
thanks usnycus

How does the scenario work for this situaiton

--- a person has entered US on H4 visa
--- changed to H1 and worked for an employer, no H1 stamping
--- acquired EAD and worked on EAD
--- has advance parole valid to certain date, but leaves US before getting a new advance parole
--- this person now approaches an US consulate and applies for a dependent visa (H4) based on spouse's H1 extension


The questions is this...
will there be any problem in getting H4 stamped in the passport since EAD was used (negative impact)?
Once H4 is stamped and enters US again, does pending AOS resume?

add one more complexity to this, can an Australian enter India on a visitor visa (holding return ticket) wishing to go for H4 stamping at US consulate. will the Indian immigration officials refuse entry because US entry visa is not there for the return ticket to US to be valid?

can US consulate in India tell the Australian passport holder to go and apply for H4 visa in Australia?

I don't think anything can get more complex than this. Your input is much appreciated.

thanks
 
Last edited by a moderator:
HAve you called about the AP status? It is supposed to be processed within 30-60 days.
 
See Inline.


Originally posted by rajudm
How does the scenario work for this situaiton

--- a person has entered US on H4 visa
--- changed to H1 and worked for an employer, no H1 stamping
--- acquired EAD and worked on EAD
--- has advance parole valid to certain date, but leaves US before getting a new advance parole
--- this person now approaches an US consulate and applies for a dependent visa (H4) based on spouse's H1 extension


The questions is this...
will there be any problem in getting H4 stamped in the passport since EAD was used (negative impact)?
No.

Once H4 is stamped and enters US again, does pending AOS resume?
Yes.


add one more complexity to this, can an Australian enter India on a visitor visa (holding return ticket) wishing to go for H4 stamping at US consulate. will the Indian immigration officials refuse entry because US entry visa is not there for the return ticket to US to be valid?
Yes, there is possibility that Indian authority won’t let you in

can US consulate in India tell the Australian passport holder to go and apply for H4 visa in Australia?
Yes.

I don't think anything can get more complex than this. Your input is much appreciated.

thanks
Click to expand...
 
thanks usnycus.

It looks like the situation is very risky. A trip to Australia may be necessary to get the H4 stamp and the PIO card. Indian consulate in New York indicated that Australian citizens (without GC) should apply for PIO card in Australia.

Another alternative is to try US consulate in Toronto or Montreal for H4 stamp since Australian citizens don't need visa to visit Canada. We are having advance parole valid until June 10th 2004 which could be used if H4 stamping fails.

Or just cancel the ticket and wait for I140 approval and AP documents which is going to cost lot of money.
 
Last edited by a moderator:
You must log in or register to reply here.
Top