AP, H1, Cronin Memo and 1 unanswered question

[gc++]

For those who are maintaining H1 status while AOS is pending, this is not the age old question about whether H1 status becomes invalid if one uses AP to reenter the US after a trip abroad. This is clarified in the Cronin Memo. According to the memo, the H1 status is not lost by using AP if one continues to work for the H1 sponsoring employer, and there is no need to use the EAD to work. When the alien reenters the US, he/she enters in parolee status, but continues to use the H1 work authorization to work. The next H1 extension reverts the alien back to official non-immigrant status and ends the parolee status.

Thus, it is almost as if the alien is a parolee but the H1 status is maintained in the background. The question is what happens if the I485 is denied when the alien is a parolee ? Can the alien work in legal status using the H1 which has not been affected due to the I485 denial ? Note that the parole and EAD become invalid soon after I485 denial. If the alien is in legal status despite the denial, then the alien is able to file MTR and maybe even another I485 while in legal status...

To clarify further...

Case 1 :
If the candidate is in official non-immigrant status and I485 is denied, the alien is not affected and able to work/stay until current H1/H4 expiry ( if alien and spouse have not used the EAD and are maintaining the H1/H4 status ), and in the interim can also file another I485 in full legal status.

Case 2 :
If the alien/spouse have used the EAD and are not maintaining the H1/H4 status, then the I485 denial is a problem and the alien starts accruing invalid status until MTR is opened.

Case 3 :
If the alien has used the AP, but uses H1 to work and not the EAD, the alien is in parolee status. How does the I485 denial affect this alien ? Is the alien still authorized to work/stay till current H1 expiry due to the Cronin Memo, without accruing illegal presence ? Can another I485 be filed in legal status ?

This is a hypothetical question. The answers from various sources are contradictory...

 

[madgu-gc2005]

For those who are maintaining H1 status while AOS is pending, this is not the age old question about whether H1 status becomes invalid if one uses AP to reenter the US after a trip abroad. This is clarified in the Cronin Memo ( http://www.shusterman.com/cronin51600.html ). According to the memo, the H1 status is not lost by using AP if one continues to work for the H1 sponsoring employer, and there is no need to use the EAD to work. When the alien reenters the US, he/she enters in parolee status, but continues to use the H1 work authorization to work. The next H1 extension reverts the alien back to official non-immigrant status and ends the parolee status.

Thus, it is almost as if the alien is a parolee but the H1 status is maintained in the background. The question is what happens if the I485 is denied when the alien is a parolee ? Can the alien work in legal status using the H1 which has not been affected due to the I485 denial ? Note that the parole and EAD become invalid soon after I485 denial. If the alien is in legal status despite the denial, then the alien is able to file MTR and maybe even another I485 while in legal status...

To clarify further...

Case 1 :
If the candidate is in official non-immigrant status and I485 is denied, the alien is not affected and able to work/stay until current H1/H4 expiry ( if alien and spouse have not used the EAD and are maintaining the H1/H4 status ), and in the interim can also file another I485 in full legal status.

Case 2 :
If the alien/spouse have used the EAD and are not maintaining the H1/H4 status, then the I485 denial is a problem and the alien starts accruing invalid status until MTR is opened.

Case 3 :
If the alien has used the AP, but uses H1 to work and not the EAD, the alien is in parolee status. How does the I485 denial affect this alien ? Is the alien still authorized to work/stay till current H1 expiry due to the Cronin Memo, without accruing illegal presence ? Can another I485 be filed in legal status ?

This is a hypothetical question. The answers from various sources are contradictory...

The questions you have raised are very genuine and there are several unexplained grey areas in USCIS memos. Nobody knows the correct answer and probably GURUS in this forum can shed some light on these stuffs.

 

[techy2468]

I think all these are grey areas......and a light is shed only when an immigration officer makes a decision......or if someone challeges the decision......

 

[GreenCardVirus]

If one enters on AP and keeps working for the same employee who sponsored your GC and H1, then the official status is Parolee. H1 can be used for work. In such a case, if 485 is denied, then "status" is lost until the case is reopened.

Typically H1 document you have in hand serves 2 purposes. Acts as Work Authorization and the attached I-94 shows your eligibility to be in the country. When you enter on AP, the I-94 you get serves as proof of legal status. H1 serves as proof of work authorization. Your status is reverted backto H1 when you file for extension and the extension is approved with an I-94.

 

[techy2468]

that makes sense....thanks GCVirus

anyone tried to find official link to cronin document on uscis website.....i could not find it.

 

[number30]

If one enters on AP and keeps working for the same employee who sponsored your GC and H1, then the official status is Parolee. H1 can be used for work. In such a case, if 485 is denied, then "status" is lost until the case is reopened.

Typically H1 document you have in hand serves 2 purposes. Acts as Work Authorization and the attached I-94 shows your eligibility to be in the country. When you enter on AP, the I-94 you get serves as proof of legal status. H1 serves as proof of work authorization. Your status is reverted backto H1 when you file for extension and the extension is approved with an I-94.

Suppose some one enters on the AP with still two years on H1. Tyically one enters on AP will get I-94 for one year. So does he has to renew the H1 after one year even if earler H1 is valid?

 

[TheRealCanadian]

Suppose some one enters on the AP with still two years on H1. Tyically one enters on AP will get I-94 for one year. So does he has to renew the H1 after one year even if earler H1 is valid?

The employer certainly doesn't need to renew the H1 if the peition hasn't expired, and the alien doesn't need to extend anything since the pending I-485 keeps them in valid status, so I would guess no.

 

[RaGs80]

RFE and AP

Hey Guys. Applied for AP on Sep 15th '06, got a reply for RFE (req for evidence) on Oct 26.

How long does the Approval take after I send the documents back? Any one knows??? Much appreciated if soemone could let me know. coudl email me at r2000gy@yahoo.com..

thanks.
Raul

 

[indianimmi]

Suppose some one enters on the AP with still two years on H1. Tyically one enters on AP will get I-94 for one year. So does he has to renew the H1 after one year even if earler H1 is valid?

NO need to renew the H1, but can't reenter if he/she don't have a valid AP

 

[number30]

The employer certainly doesn't need to renew the H1 if the peition hasn't expired, and the alien doesn't need to extend anything since the pending I-485 keeps them in valid status, so I would guess no.

That means he will loose the H1 status if he does not renew it after one year.

 

[TheRealCanadian]

That means he will loose the H1 status if he does not renew it after one year.

I don't know, because he never had H1 status to begin with and the I-94 date is really meaningless so long as the I-485 remains pending. If one wanted to be safe one could file an I-539 to extend non-immigrant status based on the approved H1 petition.

 

[gctex]

After entering on AP with a valid but "unstamped" H1 visa you are allowed to work for the "company" till the H1's validity period.

Quick queries :

a) Now is this "company" H1 holding or GC sponsoring ? I did a future employment thing so my H1 holding and GC sponsoring are two different companies.

b) Once the H1's validity is up, which company can do the H1 extension ?. H1 holding or GC sponsoring ?

c) What about H4 extension ? Is it possible at all ?. I read on some forum that someone's wife's H4 extension got denied after she entered on AP without getting her H4 stamped. The reason mentioned was "you can't do H4 extension from Parolee status".

I believe Cronin memo talks only H1/L1 and not about H4/L2. If that's the case, then can one first file for H1 extension and once that's available can we try for H4 extension ?.

Thanx in advance !

-Gctex

 

[Cmapocma]

from this memo:

However, if an alien presents both a valid H-1 or L-1 nonimmigrant visa and a valid Form I-512, and the alien is eligible for the H-1 or L-1 nonimmigrant classification, the Service should inform the alien that H-1 and L-1 nonimmigrants no longer need to use advance parole to preserve pending applications for adjustment of status and should admit the alien in H-1 or L-1 nonimmigrant status.

ha-ha
I lost my H1 status in January 2004.
I was working on EAD and traveling with AP.
I got married in 2005.
I applied for 3 year extension of my H1 in December 2006 (I didn't know that this was an option for me)
In March 2007 my extension was approved but uscis didn't change my status to H1 and I still was a parolee.
In September 2007 me and my wife stamped H1 and H4 visas in our passports in Moscow.
When we were entering US in JFK officer looked at parole stamps in my passport and asked me to present an AP. I did.
Then he led me and my wife to the interrogation room and another officer paroled me into US and he didn't want to allow my wife into US. After a long argument ("I don't know what law did you read, I'm the law here") he admitted her with H4 status.
so, now I have 1-year I-94, and my wife has 3-years I-94.

And I don't know if I can apply I-485 for her

 

[lprkhoj]

And I don't know if I can apply I-485 for her

Ofcourse you can. She is married to you and is in the US. That qualifies her as derivative beneficiary. But what's surprising though is the fact that you were admitted as parolee and she as H4. Its legally possible and there's nothing wrong with it (as far as I know) but since you were entering together with valid H stamps, both should have been granted H status. Cronin memo mentions CBP's preference for H over AP.