Question about H-1B after using Advanced Parol

Samansa

Registered Users (C)
Hi, folks:

It seems I will wait forever for my I-485 approval. I've decided to use the AD to travel. However, right now I'm still working with my H-1B and haven't got EAD yet. I never changed my employer. Regarding the ability to work after returning US with AD, I got two totally different answer from the website. I am totally confused. Do you guys have any idea about this issue?

Here is the digest of the two different opinions:

1. I will still be able to work as H-1B even without EAD

The alien is entitled to apply for Advanced Parole as benefit associated with adjustment of status application. Once approved, the Advanced Parole allows the alien to travel abroad and reenter into the U.S. After being paroled in, the alien can still keep his/her H-1 or L-1 status, as the case may be, in the sense that he/she can still apply for an extension of H-1 or L-1 status, provided the alien resumes employment with the same employer for whom he/she had previously been authorized to work as an H-1 or L-1 nonimmigrant. In this scenario, the approval of that extension would enable the alien to reenter into the U.S. on H-1 or L-1 status if he/she travels abroad in the future. (INS Adjudicator's Field Manual, Chapter 23)
However, if after being paroled in, the alien changes employer that sponsored his/her original H-1 or L-1 status, he/she may no longer has valid H-1 or L-1 nonimmigrant status, even though he/she can still lawfully stay in the U.S. during the I-485 pending period. Thus, if the alien's I-485 application is denied, he/she may not be able to lawfully stay in the U.S. as nonimmigrant.


2. I will NOT be able to work

[Question]: I have a pending I-485 and was planning to continue working for this company in H-1B status. However, last year I visited my home country and came back with advance parole, and as a result, I became a parolee. Is it true that now I have lost my H-1B status and can only work with an EAD (even for the same company who is supporting my I-485 application)?

[Answer]: Yes. Unless/until you exit the U.S. again and re-enter based on a valid H-1B stamp you will be considered to be a parolee and would need an approved EAD to work. Note that while re-entry based on a valid H-1B visa has the potential ability to allow you to regain H-1B status, you would lose this ability permanently once you actually went to work using an EAD.
 
While point # 1 is from the manual, and is also what my lawyer told me, many including Sheela Murthy disagrees.

If you could clarify from where you got the # 2 answer, it might benefit many folks visiting this site.

Thanks.

EAC-02-063-5....
RD 11/29/01
AD 04/22/03
 
This question jas been asked couple of times in Murthy Chat, search her chat database and you will get a response to it, my interpretation is that you can file for H-1 extension before leaving US and while your application is pending , travel abroad and use AP to re-enter, once you do that you will be in parolee status till the time your H-1 extension is approved, once that happens then by doctrine of last approved petition you will regain your H-1 status back.

Or the safest thing to do and which I'm also planning to do this December(my H-1 expires in Nov) is to apply for H-1 extension through Premium Processing(I will pay $1000.00 from my pocket) and have the approval in hand before leaving US, will then get my passport stamp in Delhi, ........I will have peace of mind, all these immigration jargons are too confusing.

Chat User : Thanks for the wonderful service. I have H1B status, but no visa. If I reenter as a parolee, can I still work with my H1B status? Is there any disadvantage to being a parolee?

Attorney Murthy : If a person on H1B travels abroad and reenters as a parolee, the person is now considered in parole status. However, the May 2000 INS (now BCIS) Memo allows the parolee to file an extension of the H1B petition and get back into H1B status. The disadvantage of being a parolee is that if the I-485 is denied for any reason, then there is no backup status available. The H1B provides some additional back-up protection, though very few people need to use it. Like insurance, it is helpful when an emergency occurs
 
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