H1 or Parolee???

[PAKIGUY]

Background:
Citizenship: Pakistan, Came to US on F1, Got an H1, working, but DO NOT HAVE AN H1 STAMP IN PASSPORT.
Applied for AOS, got AP approved. Did not apply for EAD.

Scenario:
Planning to GET MARRIED before 485 Approval from home country.

Questions:
1) If I travel, get married, and come back using AP, can I bring my wife on H4?

2) If I use AP, and my AOS denies, what would be my status? Can I transfer to another company maintaining my H1? (I still have 3+ years out of 6 years limit for H1 extension)

3) The fact that I did not apply for EAD, once I come back from my journey, can I continue working for the same employer based on current 797?

 

[prq20]

I am in a similar situation. Any help will be appreciated.

 

[Madison04]

I don't believe you can bring your wife in on H4. You probably have to file an application in advance to add her to your pending 485 and then apply for an AP for her. But I'm not completely clear about this and you should wait for others to chime in.

One thing is clear: As soon as you use your AP to enter, you loses your H1 or any other non-immigrant status. So, to answer your last question, in order to work after return, you'll need to apply for an EAD and file a new I-9 form with your employer.

If your AOS is denied, you becomes illegal from the date of the denial and have to leave the country within a certain days (usually 30 days). If you're still working with the same employer and your original H-1B is still not yet expired, then you can simply go to a 3rd country, apply for a re-entry visa, enter as a H-1B, and restart your GC process. Or, you can leave the country, wait for another company to apply for a new H-1B, and then use that to apply for entry visa.

 

[TheRealCanadian]

You probably have to file an application in advance to add her to your pending 485 and then apply for an AP for her.

There's no such thing as "adding a dependent to a pending I-485". She needs to file her own I-485, and to do that she needs to be legally admitted into the US.

One thing is clear: As soon as you use your AP to enter, you loses your H1 or any other non-immigrant status. So, to answer your last question, in order to work after return, you'll need to apply for an EAD and file a new I-9 form with your employer.

That's completely wrong. Read about the Cronin Memorandum.

To the original poster I'd just leave the US, get an H-1 stamp and get an H-4 for your wife, and re-enter the US together. Have her file an I-485 after she enters.

 

[Madison04]

Well, RealCanadian, I respect your inputs as I also benefited from your earlier posts. But your response here really doesn't help anyone much.

About your first point, well, of course one cannot add a new person to an pending 485, per se. I didn't use a lawyer's tongue to say it, but I was guessing that people would understand what I meant.

About your second point, with all due respect, I kind of doubt that you understand correctly the Cronin Memo yourself. Again, I didn't use the right wordings in my reply to the OP, since I was too lazy to get into that much details; instead, I just wanted to let him know the basics in plain language... Sorry, my bad.

Yes, strictly speaking, it's correct that an unexpired H1 is still valid and will continue to be counted toward his total H1 time allowance even if the visa holder enters US as a parolee; that's why I said the OP could go to a 3rd country directly to apply for a reentry visa if his AOS was denied, because his H1 petition is still valid. But, technically he will still be working pursant to EAD, even though he has a valid H1... OK, I don't want to complicate this anymore with my amateurish explainations. The following is from an immigration lawyer who worked for my wife's ex-employer (a big international company):

"From a technical standpoint, when you re-enter pursuant to advance parole, you should continue your employment with xxx pursuant to a valid Employment Authorization Document (you will need to complete a new I-9 form). At the same time, if you maintain the same position with xxx, you can maintain your H-1B status, that is, you can still apply for an H-1B visa during the validity period of your H-1B status. If you exit once again and re-enter with an H-1B visa, you would then technically be working pursuant to your H-1B status (and will need to complete a new I-9 form).

Please note that any time spent working pursuant to an EAD while you concurrently hold H-1B status will count against your 6 year limit in H-1B status."

At last, it's easy for you to say that the OP should get an H1 stamp and then bring his wife back on H4, but it's something that can be quite risky in many countries such as China, India, and Parkistan. So, he does need to know what is his other options if he doesn't or can't obtain an H1.

 

[TheRealCanadian]

About your first point, well, of course one cannot add a new person to an pending 485, per se. I didn't use a lawyer's tongue to say it, but I was guessing that people would understand what I meant.

The problem with assuming that people understand what you mean is that it can lead to some dangerous assumptions, namely that she does not need to enter the US. Precision in language isn't merely a conspiracy against the laiety; it's to clearly indicate what can and cannot be done so that mistakes are not made.

But, technically he will still be working pursant to EAD, even though he has a valid H1...

But he doesn't need an EAD at all if the H1 petition remains valid and he continues to work under its terms.

At last, it's easy for you to say that the OP should get an H1 stamp and then bring his wife back on H4, but it's something that can be quite risky in many countries such as China, India, and Pakistan.

He wanted to know how to bring his wife in and start her GC process, and what I told him was factually correct. I cannot speak as to the relative risk of the H1; if he has AP it provides a safety valve.