Travel on AP (family based) and H1B status

[rkhirani]

Hey gurus -
Pardon me if this question has been asked in some thread on this forum (search did not return any results)

My situation is:
1. Family based AOS pending adjudication (stuck in name check) since Aug. 2006.
2. Have Valid AP and EAD as well, which I have not used until now.
3. Currently am in H1B status which is valid until Nov 2009 (though stamp in passport is expired)
4. Planning to travel out of country in January 2008 for 3 weeks.

Will someone be kind enough to answer the questions below.

1. If I get H1B visa stamping done in India and re-enter in H1B status - will I abandon my family based I485?

2. My understanding is that if I choose to re-enter based on Advance Parole (issued based on pending I485 - family based), I will be relinquinshing my H1B status - is my understanding correct?

Please advice me which category should I use to re-enter. What are the pros and cons.

 

[austriacus]

1. No.

2. According to my interpretation of USCIS guidance on this (Cronin Memo) it is correct that you would not return in H-1B status but as a parolee. However, you would be allowed to continue to work for the same H-1B job with the same employer and would be allowed to apply for extension of H-1B status upon your return.

If you start working on EAD before you return, or plan to return to work on EAD instead of H1-B then you must use AP. Otherwise, if you plan to work for your H-1B job and employer, the safer alternative is to get a H-1B visa.