05/05/2005: Approaching Summer Travel Season and H-1B Traveling With Advance Parole
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http://www.immigration-law.com/Archive XI.html)
Summer is on our door step and schools will take a long break allowing students and employees of the schools to take a vacation and traveling abroad. There are a substantial number of EB-485 filers who maintain a H-1B status and at the same time possess an Advance Parole. Some of these EB-485 filers may want to travel on Advance Parole rather than on H-1B because of the complication and delay in obtaining the H-1B visa stamp at the visa posts.
People are confused as to whether they can return to the U.S. using Advance Parole and continue the H-1B employment without EAD. The answer to this question is confusing because the legacy INS flip-flopped itself in the past. Initially, it was policy that such H-1B alien who returns to the U.S. without EAD could not work as he/she was no longer H-1B nonimmigrant and did not have employment authorization. However, this memorandum was short-lived, being later amended and rescinded.
The current rule is that the H-1B aliens who return to the U.S. using Advance Parole will be able to resume the employment authorization which is inherent in the H-1B status inasmuch as the following conditions are met: (1) The employment is resumed with the same H-1B employer. (2) The H-1B approval must remain valid, even though one does not need a valid H-1B visa stamp. Once the H-1B validity expires, so does the employment authorization. Such an alien cannot continue employment unless he/she obtains either EAD or extension of H-1B status. The H-1B alien is returning to the U.S. as a parolee when they use Advance Parole and their status remains a parolee and not a H-1B nonimmigrant, but current rule and policy allow such H-1B approved aliens two benefits pending finalization of its policy on this issue and release of a regulation. The first benefit is employment authorization during the period of valid H-1B approval even though his/her status is no longer H-1B. The second benefit is eligibility for extension of their H-1B status and resuming the H-1B status without leaving the country. Once extension is approved, the alien returns to the H-1B status. The approval of such H-1B extension is considered by the USCIS as revocation of the parolee status and reinstatement of the H-1B status. These travellers should make it sure that they have both valid H-1B approval paper and valid Advance Parole when they return from the trip. Again, the EAD is not necessary inasmuch as he/she has a valid H-1B approval. However, against the potential change of employment or loss of H-1B jobs, it will be always prudent that one keeps an EAD current all the time. Enjoy your Summer!!
