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Final Confirmation -:About Using AP and H1/H4 Status.
- Thread starter Con_File_Feb
- Start date
Jharkhandi
Registered Users (C)
Please quote your sources.yygov said:Hi, Pareshan4GC,
I believe your lawyer is right. However, anyone can try his/her chance.
using AP/EAD on H1 vasa
I need more clearification.
I used my AP when I entered U.S in last summer (2004) and I,m using EAD for my payroll. I also had H1 exntension in Jan. 2004 , effective till 2006.
The reason I used AP is that I didn't have enough time to get a visa stamp
before coming back. At that time, my 1st H1 visa stamp was already expired.
So, I already lost my H1B status?
I,m waiting for I-140/I-485 approval (RD=05/2003). I got RFE from both of them in 07/2004 and I have sent the response couples of days ago.
If I-140 gets denial (automatically with I-485), will I be in out of status ?
What I have known is that using AP won't invalidate H1 status. What about EAD? I haven't talked this with my lawyer yet.
I need more clearification.
I used my AP when I entered U.S in last summer (2004) and I,m using EAD for my payroll. I also had H1 exntension in Jan. 2004 , effective till 2006.
The reason I used AP is that I didn't have enough time to get a visa stamp
before coming back. At that time, my 1st H1 visa stamp was already expired.
So, I already lost my H1B status?
I,m waiting for I-140/I-485 approval (RD=05/2003). I got RFE from both of them in 07/2004 and I have sent the response couples of days ago.
If I-140 gets denial (automatically with I-485), will I be in out of status ?
What I have known is that using AP won't invalidate H1 status. What about EAD? I haven't talked this with my lawyer yet.
Jharkhandi
Registered Users (C)
Since you have used EAD for your payroll, your H1b is in dormant state. To make it live, you need to go out of USA, get H1b visa stamped and then enter again.
TheColorGreen
New Member
H status and Advance Parole
Found this article on the web. Just google for Cronin Memo....
Tough choices abound during adjustment of status process
By Susan J. Cohen
Published: Sunday, August 15, 2004
Applicants for permanent residence who file employment-based permanent residence applications (I-485 "adjustment of status" applications) face an average wait of two years while their applications are pending. A lot can happen during this lengthy processing time, and many applicants face difficult decisions and choices along the way.
Two aspects of the process are the subject of intense anxiety and considerable confusion. The first is the right of an adjustment of status applicant to work for an employer other than the one that sponsored his/her I-140 immigrant visa petition. The second is the right to travel outside of the United States during the pendency of the application and the effect on the application of subsequent reentries in Advance Parole, H-1B or L-1 visa status.
Except for beneficiaries of "extraordinary ability" or "national interest waiver" immigrant visa petitions, the general rule is that when the I-485 application is approved, the employment-based adjustment of status applicant is expected to work for the employer that sponsored his/her I-140 immigrant visa petition in the position described in the application.
In 2000, the Immigrant and Nationality Act was amended to allow an exception to this general rule. According to this exception, an application for adjustment of status may still be approved if the applicant works for a different employer as long as three conditions are met: the I-140 immigrant visa petition must have been approved; at least 180 days must have passed from the filing of the I-485 adjustment of status application; and the applicant must continue to work in "the same or similar occupational classification".
There is a very good reason why many adjustment of status applicants are confused about whether they need to use an Advance Parole document when returning from overseas travel to avoid being accused of abandoning their adjustment of status applications and whether their entry into the United States in Advance Parole status requires them to work with an employment authorization document as a consequence. The reason for the confusion surrounding these questions is that the U.S. Citizenship and Immigration Services has flip-flopped dramatically on these issues.
Prior to June1999, anyone who filed for adjustment of status and traveled outside of the United States, and returned without Advance Parole, was considered to have abandoned their permanent residence application. Advance Parole was always required, and subsequent employment in the United States required an employment authorization document.
On June 1, 1999, the Immigration and Naturalization Service published an interim regulation clarifying that a person in H or L visa status with a still-valid H or L visa in their passport, could travel on such a visa during the pendency of his/her application without abandoning it, as long as the person remained eligible for H or L visa status and was coming to resume employment with the same employer that sponsored his/her H or L visa petition.
The interim rule has the weight of law and clarified that H or L visa holders who meet the criteria could either travel with Advance Parole or enter with their visas, without jeopardizing their applications. (A significant distinction is that if the adjustment of status application is denied, those who entered with Advance Parole would find themselves in removal proceedings, while those who entered in H or L status would remain in status, assuming they hadn't used an employment authorization document to work for an employer other than their sponsoring H or L employer.)
While the June 1999 interim rule sought to provide helpful guidance, it served to create some confusion as well, because it specifically stated that those people who don't fit squarely within its parameters "shall be deemed to have abandoned their adjustment of status applications, constituting grounds for termination of the pending application."
Take, for example, the case of someone who enters the United States with Advance Parole and uses an employment authorization document to work for an employer other than the one that sponsored his/her H-1B, L-1 or I-140 petition. Rather than renew the employment authorization document, the second employer obtains approval of an H-1B visa petition on the individual's behalf and sends the employee abroad on a business trip.
While abroad, the individual secures an H-1B visa stamp in his passport. He no longer has valid Advance Parole or employment authorization document, and uses the new H-1B visa to enter the United States. According to the terms of the interim rule, this individual would have, by implication, abandoned his permanent residence application.
In light of the confusion that this interim regulation caused, the INS issued a clarifying memorandum on May 18, 2000, which departs somewhat from the interim regulation and expands on it as well. The memorandum, authored by acting commissioner Michael D. Cronin, specifically indicates that its guidance is valid only until the issuance of final regulations and that the issuance of such regulations will supersede the guidance in the memorandum.
The "Cronin Memo," as this memorandum is called, made several surprising pronouncements. First, it states that even if an adjustment of status applicant enters the United States in Advance Parole status, he/she may file to extend his/her H-1 or L-1 visa status and if the H or L extension petition is approved, the person will somehow "morph" from parolee status to H or L visa status, respectively.
By the same token, the Cronin Memo states that persons who enter with Advance Parole, but then work without an employment authorization document, will not be deemed to have worked without authorization, as long as they continue to work for the employer who sponsored their H or L visa petition, and as long as that petition remains valid.
Though, both these pronouncements appear to be equally without legal basis, they represent the current policy. As such it is always safest to have a valid employment authorization document following entry as a parolee.
The Cronin Memo takes pains to state that this "forgiveness" of H or L employment following entry with Advance Parole, will be "trumped" by the publication of the final rule. Finally, the Cronin Memo also clarifies that, under certain circumstances, people who don't fit squarely into the criteria specified in the June, 1999 interim rule, in fact will not be deemed to have abandoned their adjustment of status applications.
It specifically states that someone who previously entered the United States with Advance Parole can come back the next time with a valid H or L visa and I-797 approval notice, even if there has been a recent change of employer. Of course, the I-797 approval notice must be issued to the new employer.
The clarifications provided in the Cronin Memo should bring comfort to persons who fit the description of the hypothetical applicants described earlier, who previously had H or L status, lost their jobs and then worked for a new employer with an employment authorization document. These adjustment of status applicants, and there are many people in this situation, may either use Advance Parole or an H or L visa to reenter the United States without fear of abandoning their adjustment of status applications. Furthermore, they may choose to enter with Advance Parole one time, and enter with their H or L visa the next time they return to the United States after overseas travel.
Persons with pending adjustment of status should always consult with their immigration counsel before leaving the United States to learn the most up-to-date information both about the status of their application and the status of the law, which changes rapidly. The liberal pronouncements in the Cronin Memo could become obsolete upon publication of the final regulation, or upon the issuance of a superseding memorandum by the U.S. Citizenship and Immigration Services.
Found this article on the web. Just google for Cronin Memo....
Tough choices abound during adjustment of status process
By Susan J. Cohen
Published: Sunday, August 15, 2004
Applicants for permanent residence who file employment-based permanent residence applications (I-485 "adjustment of status" applications) face an average wait of two years while their applications are pending. A lot can happen during this lengthy processing time, and many applicants face difficult decisions and choices along the way.
Two aspects of the process are the subject of intense anxiety and considerable confusion. The first is the right of an adjustment of status applicant to work for an employer other than the one that sponsored his/her I-140 immigrant visa petition. The second is the right to travel outside of the United States during the pendency of the application and the effect on the application of subsequent reentries in Advance Parole, H-1B or L-1 visa status.
Except for beneficiaries of "extraordinary ability" or "national interest waiver" immigrant visa petitions, the general rule is that when the I-485 application is approved, the employment-based adjustment of status applicant is expected to work for the employer that sponsored his/her I-140 immigrant visa petition in the position described in the application.
In 2000, the Immigrant and Nationality Act was amended to allow an exception to this general rule. According to this exception, an application for adjustment of status may still be approved if the applicant works for a different employer as long as three conditions are met: the I-140 immigrant visa petition must have been approved; at least 180 days must have passed from the filing of the I-485 adjustment of status application; and the applicant must continue to work in "the same or similar occupational classification".
There is a very good reason why many adjustment of status applicants are confused about whether they need to use an Advance Parole document when returning from overseas travel to avoid being accused of abandoning their adjustment of status applications and whether their entry into the United States in Advance Parole status requires them to work with an employment authorization document as a consequence. The reason for the confusion surrounding these questions is that the U.S. Citizenship and Immigration Services has flip-flopped dramatically on these issues.
Prior to June1999, anyone who filed for adjustment of status and traveled outside of the United States, and returned without Advance Parole, was considered to have abandoned their permanent residence application. Advance Parole was always required, and subsequent employment in the United States required an employment authorization document.
On June 1, 1999, the Immigration and Naturalization Service published an interim regulation clarifying that a person in H or L visa status with a still-valid H or L visa in their passport, could travel on such a visa during the pendency of his/her application without abandoning it, as long as the person remained eligible for H or L visa status and was coming to resume employment with the same employer that sponsored his/her H or L visa petition.
The interim rule has the weight of law and clarified that H or L visa holders who meet the criteria could either travel with Advance Parole or enter with their visas, without jeopardizing their applications. (A significant distinction is that if the adjustment of status application is denied, those who entered with Advance Parole would find themselves in removal proceedings, while those who entered in H or L status would remain in status, assuming they hadn't used an employment authorization document to work for an employer other than their sponsoring H or L employer.)
While the June 1999 interim rule sought to provide helpful guidance, it served to create some confusion as well, because it specifically stated that those people who don't fit squarely within its parameters "shall be deemed to have abandoned their adjustment of status applications, constituting grounds for termination of the pending application."
Take, for example, the case of someone who enters the United States with Advance Parole and uses an employment authorization document to work for an employer other than the one that sponsored his/her H-1B, L-1 or I-140 petition. Rather than renew the employment authorization document, the second employer obtains approval of an H-1B visa petition on the individual's behalf and sends the employee abroad on a business trip.
While abroad, the individual secures an H-1B visa stamp in his passport. He no longer has valid Advance Parole or employment authorization document, and uses the new H-1B visa to enter the United States. According to the terms of the interim rule, this individual would have, by implication, abandoned his permanent residence application.
In light of the confusion that this interim regulation caused, the INS issued a clarifying memorandum on May 18, 2000, which departs somewhat from the interim regulation and expands on it as well. The memorandum, authored by acting commissioner Michael D. Cronin, specifically indicates that its guidance is valid only until the issuance of final regulations and that the issuance of such regulations will supersede the guidance in the memorandum.
The "Cronin Memo," as this memorandum is called, made several surprising pronouncements. First, it states that even if an adjustment of status applicant enters the United States in Advance Parole status, he/she may file to extend his/her H-1 or L-1 visa status and if the H or L extension petition is approved, the person will somehow "morph" from parolee status to H or L visa status, respectively.
By the same token, the Cronin Memo states that persons who enter with Advance Parole, but then work without an employment authorization document, will not be deemed to have worked without authorization, as long as they continue to work for the employer who sponsored their H or L visa petition, and as long as that petition remains valid.
Though, both these pronouncements appear to be equally without legal basis, they represent the current policy. As such it is always safest to have a valid employment authorization document following entry as a parolee.
The Cronin Memo takes pains to state that this "forgiveness" of H or L employment following entry with Advance Parole, will be "trumped" by the publication of the final rule. Finally, the Cronin Memo also clarifies that, under certain circumstances, people who don't fit squarely into the criteria specified in the June, 1999 interim rule, in fact will not be deemed to have abandoned their adjustment of status applications.
It specifically states that someone who previously entered the United States with Advance Parole can come back the next time with a valid H or L visa and I-797 approval notice, even if there has been a recent change of employer. Of course, the I-797 approval notice must be issued to the new employer.
The clarifications provided in the Cronin Memo should bring comfort to persons who fit the description of the hypothetical applicants described earlier, who previously had H or L status, lost their jobs and then worked for a new employer with an employment authorization document. These adjustment of status applicants, and there are many people in this situation, may either use Advance Parole or an H or L visa to reenter the United States without fear of abandoning their adjustment of status applications. Furthermore, they may choose to enter with Advance Parole one time, and enter with their H or L visa the next time they return to the United States after overseas travel.
Persons with pending adjustment of status should always consult with their immigration counsel before leaving the United States to learn the most up-to-date information both about the status of their application and the status of the law, which changes rapidly. The liberal pronouncements in the Cronin Memo could become obsolete upon publication of the final regulation, or upon the issuance of a superseding memorandum by the U.S. Citizenship and Immigration Services.
Anyone having doubt, kindly go through entire thread and also check following thread:
http://boards.immigrationportal.com/showthread.php?s=&threadid=119229
http://boards.immigrationportal.com/showthread.php?s=&threadid=119229