J-visa holder with waiver-Travel on Advance parole

P

psn2006

Registered Users (C)
Dear Friends,

I would apprecite to have your comments and suggestions on my situation.

I am currently on J-visa and got wiaver for 2 yr home residency requirements. I have an approved EB-1A from TSC. I would like to travel on Advance parole for a conference abraod. But my EAD not yet apporved.

I would like to know whether I can travel with AP before my EAD is approved. If so, what will be my status after comming back to USA. If I should continue on J-1, am I subjected to 2 yr rule again.

Kinldy give your valuable suggestion as the problem is complicated.

Thank you,

PSN2006
 
Hello,

1- I assume you are an I-485 applicant. If so, you must use Advanced Parole to travel, since you don't have H-1B. Leaving the US without it will cause your AOS application to be considered abandoned.

2- You will no longer be in J-1 status when you return with AP, but will be in "parolee" status.

3- EAD is not a travel document, and you are not legally required to have one when you travel or to be readmitted into the US. In fact, the EAD card itself states that it is not valid for reentry into the US. The reason most people don't travel without it is that, since they are returning as parolees, they fear that the inspection agent at the airport will require proof of income in the US, because otherwise, how can the parolee support himself/herself?

4- In your case, you must understand that once you return, and as you will no longer be in J-1 status, you will be unable to work until you get your EAD. You must also update your immigration office at your institution with your new status, which may also affect payroll (taxes, etc).
 
Thank you for the explanation. I need some further clarification.

I have advance parole. so, I can travel and come back on that. But my question is whether I can continue to work on J-1 till my EAD got approved or I will go out of status.

I would appreciate your inputs.

Thank you,

psn2006
 
Dear Jk0274

Thank you for the explanation. I need some further clarification.

I have advance parole. so, I can travel and come back on that. But my question is whether I can continue to work on J-1 till my EAD got approved or I will go out of status.

I would appreciate your inputs.

Thank you,

psn2006
 
No, you cannot continue to work on J-1.

Your status is determined when you enter the US. As you will enter as a "parolee", you are no longer in J-1 status. So unless you get EAD, you will have to stop working. Keep in mind that you will not be illegally in the US, only you will not be able to work until you get your EAD. This assumes that you won't get your EAD in time, but if you got your AP already, and you applied for EAD at the same time as AP, then you should get your EAD really soon unless there is a unique problem (for which you will get a request for evidence, or RFE).

Once you do get your EAD, you will have to notify your employer because you will have to update your employment eligibility forms and other immigration matters which the international office may need.
 
I am not in this situation at this point but for sake of clarification, if one has already applieed for EAD and AP, got both the docs, then leaves the country to go back home and returns in a couple of weeks or so......
when he comes into US, will he be able to use EAD to work?
If not can he apply for EAD and start working?
Is the situation same for someone on H-1B visa also because H1B is dual intent and people have travelled without EAD also.
Thanks for any info...
 
Dear JK0274

Thank you for the information. Finally If I understood correctly, I can travel on AP. When I come back my presence would not be illegal. Only thing is I cannot work on existing J-1 and I need to wait for EAD and use it as and when it comes.

Thank you once again.

PSN2006
 
psn2006 said:
Thank you for the information. Finally If I understood correctly, I can travel on AP. When I come back my presence would not be illegal. Only thing is I cannot work on existing J-1 and I need to wait for EAD and use it as and when it comes.

Thank you once again.

PSN2006
Click to expand...

Correct. When you are "paroled" into the US, you are by definition legal!! If you were not legal, you wouldn't be able to get back in at the border!! But you will be in a new status (parolee), and thus your DS-2019 (J-1 form) would be invalid. Once you get your EAD, you can resume your work.
 
startrek2005 said:
I am not in this situation at this point but for sake of clarification, if one has already applieed for EAD and AP, got both the docs, then leaves the country to go back home and returns in a couple of weeks or so......
when he comes into US, will he be able to use EAD to work?
If not can he apply for EAD and start working?
Is the situation same for someone on H-1B visa also because H1B is dual intent and people have travelled without EAD also.
Thanks for any info...
Click to expand...

If you have a valid H-1B visa in your passport, or are eligible to obtain one abroad, then you don't need to use AP or EAD once you return, assuming you are returning to work for the same employer (or the employer who sponsored the H-1B for you).

The key thing to remember is that, generally, your admission stamp indicates your status. If you have been admitted as H-1B, you are expected to continue in that status. If you have an EAD but do not use it, it won't affect anything. But if you go to your employer and tell them that you want to start using your EAD, and that you want to change your I-9 forms to indicate that your employment authorization comes from your EAD and not your H-1B status, then you will lose your H-1B status.

If you lose your H-1B status, but have a pending I-485 and EAD, then it really won't make a difference in your life - you will continue to remain legal and work legally. But if you have dependents on H-4 visas, and they did not apply for I-485 with you, they will become out of status. So do not switch to EAD unless all your family also have pending I-485 applications.

If you have EAD and AP, but also have H-1B, you can go abroad and show your H-1B visa when you come back. Do not present the immigration officer with your AP, even though it won't really hurt if you do...
 
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jk0274

jk0274,

Thanks for sharing such useful information with the forum. I just wonder if one has a valid h1 visa/applied for 1-485 for spouse and himself, and the spouse starts working on EAD.... Now for some reason if i-140 /I-485 is not approved, what will be the status of spouse. Will it be H4 again or the spouse will have to leave the country for re-stamping of H4 and also lose EAD.

Thanks much,
kku













jk0274 said:
If you have a valid H-1B visa in your passport, or are eligible to obtain one abroad, then you don't need to use AP or EAD once you return, assuming you are returning to work for the same employer (or the employer who sponsored the H-1B for you).

The key thing to remember is that, generally, your admission stamp indicates your status. If you have been admitted as H-1B, you are expected to continue in that status. If you have an EAD but do not use it, it won't affect anything. But if you go to your employer and tell them that you want to start using your EAD, and that you want to change your I-9 forms to indicate that your employment authorization comes from your EAD and not your H-1B status, then you will lose your H-1B status.

If you lose your H-1B status, but have a pending I-485 and EAD, then it really won't make a difference in your life - you will continue to remain legal and work legally. But if you have dependents on H-4 visas, and they did not apply for I-485 with you, they will become out of status. So do not switch to EAD unless all your family also have pending I-485 applications.

If you have EAD and AP, but also have H-1B, you can go abroad and show your H-1B visa when you come back. Do not present the immigration officer with your AP.
Click to expand...
 
If I-485 gets rejected, the EAD is automatically invalid. If the H-4 (or the H-1B for that matter) uses EAD to work, that person is not longer in H status.

Therefore, once I-485 is rejected, then the applicant and dependents begin accruing days of unlawful presence in the US. I know it's unfair that there is no grace period to leave the country, but that's how it is.

As for regaining H-1B, that's something I'm not familiar with, but read this post:
http://www.immigrationportal.com/showthread.php?t=200558

Hopefully this is not something you will have to worry about!
 
Dear jk0274,

Thanks a ton for clarifying this. This is really helpful. I have a question. I am on H-1B and I have 485/765/131 pending (for both myself and my wife). If I decide to leave my job (or get fired, hypothetically), can I be legally in the US while I search for another job? I will not be mainitaining my H-1B status since I would be no longer employed. So, what would be my legal status?

Thanks.

jk0274 said:
If I-485 gets rejected, the EAD is automatically invalid. If the H-4 (or the H-1B for that matter) uses EAD to work, that person is not longer in H status.

Therefore, once I-485 is rejected, then the applicant and dependents begin accruing days of unlawful presence in the US. I know it's unfair that there is no grace period to leave the country, but that's how it is.

As for regaining H-1B, that's something I'm not familiar with, but read this post:
http://www.immigrationportal.com/showthread.php?t=200558

Hopefully this is not something you will have to worry about!
Click to expand...
 
jk0274

JK,

thanks much for your answer and posting the thread too. Yes, I do hope that I don't have to worry about it for now but you never know in the hands of USCIS!.. Just preparing myself...:o

Tx,kku








jk0274 said:
If I-485 gets rejected, the EAD is automatically invalid. If the H-4 (or the H-1B for that matter) uses EAD to work, that person is not longer in H status.

Therefore, once I-485 is rejected, then the applicant and dependents begin accruing days of unlawful presence in the US. I know it's unfair that there is no grace period to leave the country, but that's how it is.

As for regaining H-1B, that's something I'm not familiar with, but read this post:
http://www.immigrationportal.com/showthread.php?t=200558

Hopefully this is not something you will have to worry about!
Click to expand...
 
gc_eb1ea said:
Dear jk0274,

Thanks a ton for clarifying this. This is really helpful. I have a question. I am on H-1B and I have 485/765/131 pending (for both myself and my wife). If I decide to leave my job (or get fired, hypothetically), can I be legally in the US while I search for another job? I will not be mainitaining my H-1B status since I would be no longer employed. So, what would be my legal status?

Thanks.
Click to expand...

My answer below assumes you are self-petitioning (EB-1 EA or EB-2 NIW):

If you have a pending I-485 Adjustment of Status application, but are in H-1B status, and you leave your H-1B job for whatever reason, then you will be "out of status" (no longer in H-1B status) but will remain "legally present" in the United States by virtue of your pending I-485. Therefore, you are free to search for another job legally. To be able to work in that job, you will need to have your EAD. But if you don't have an EAD, you are still legally present, but just not allowed to work until you get it.

Keep in mind one important thing: Your new job must be in the same field as what your I-140 says you are. You cannot file a I-140 as a molecular biologist and then go to work at the Apple Store selling iPods for example. This is to cover your butt in case your I-140 is approved but you are called for an interview with USCIS for your actual Green Card - the officer will want to see that you are working in your area of expertise. It's also more specific: If you claimed, for example, to be an expert in the field of Alzheimer's Disease on your I-140 petition, you can't go on arthritis research.

I know this is much more info than you asked for, but hey, you asked!
 
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