EAD, AP and H1-B

HooMan:

Based on that link, it's clear that an H-1 holder can return on AP and continue working on H-1 status. The following paras mention that:

- 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.)

- 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.

- 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.
 
Mavishka,
The only problem with that article is that it is dated May, 2000. I sent an email to my paralegal at Murthy asking her to find out if any other memo has superseded(sp?) this one on this issue. I am still waiting.....
 
Reply from Murthy

Thank you for your eMail. Once you enter on the Advance Parole, you are no
longer in H-1 status. However, it is possible to extend or amend your
status. Therefore, the safest thing may be to file a new H-1 amendment.
This will mean that your employer will not have to pay the $1,000 training
fee. This will allow you to work while the newly filed case is pending.
Additionally, it will continue your permission to work through the H-1
period.

The INS takes the position that a person who enters on Advance Parole is no
longer in H1B status, in separate INS memos, the INS has stated that a
person can continue to maintain both the H1B status and the Advance Parole
status even with an Advance Parole or an EAD card. Also, if you have never
worked for any other employer other than the H1B employer, then you have
really never worked on the EAD card and could continuously be considered on
H1B status. The idea to file an H1B amendment of some sort is to be on the
safe side though it is possible that you could continue to work on your H1B
till 2004, prior to that date file an H1B extension. As you continue to
have recent pay stubs with the present sponsoring employer and we file the
extension or amendment while you still can show your H1B with your existing
employer, it may be okay though the safest approach would be to file some
paperwork to correct the mistakes since you really should have entered on
your H1B status rather than on the Advance Parole.
 
So, Jigesh was right in most part. This whole thing about entering on AP and then filing an H1 amendment to get back to H1 status sounds very convoluted to me. Best would have been to enter on H1 and maintain status as H1, or enter on AP and work on EAD, to keep things simple. Anyway, glad to know that there is a way out of this. Thanks.
 
Yeah....that's what I thought initially. However, I am sure other attorneys (other than Attorney Murthy) might have different views. Wish INS would come out with some clarification "some day."

Best wishes,

Jigesh
 
Latest Reply from Murthy

I had sent a message back to Murthy with the link to the INS memo ( http://www.murthy.com/UDnewins.html). I asked her if that memo had been superceded or any other new regulations might have come in effect after that.

This is her reply:
Thank you for your eMail message. In fact, that particular memo has not yet been superceded and continues to remain the existing law in the U.S. You should print out a copy of that memo and keep it with you when you travel and later on when you apply for your H1B extension. A person is allowed to continue to work on the H1B with the H-1 sponsoring employer until the INS
issues some other memo clarifying this or issue regulations changing their interpretations of the laws, this memo continues to remain valid INS policy.

Again, I am her client and this is her email to me. Please do not take this as legal advice. Consult your own attornies and legal representatives.

Thanks
HooMan
 
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