View Full Version : Using Ap while I-485 pending_H-1b status

06-06-2009, 09:16 AM
Hello Gurus,

I am planning to use my Advance Parole while travelling to Canada. My _485 is pending and H-1b is active and will expire on 2011.

My question is, once I travel using AP what happens to My H-1b status. Can I continue using the same for my salary processing?. I do not want to use EAD as far as my H-1b is active.

06-06-2009, 11:29 AM
Can someone answer this?

06-07-2009, 08:24 AM
I'm interested in the subject as well and this is what I was able to find:

Apparently, once you enter on AP you are no longer in H1-B status. You can however go back and work for the same employer without any additional complications. When your H1 expires you can file for an extension and you go back to being in H1-B. You don't need to file a new I-9 and use your EAD because the initial authorization document that the employer reviewed would still be valid and unexpired (I-797 H1-B approval notice).

What I haven't been able to find out is what will the expiration date on the parolee I-94 be. If it's 1 year I don't really care because that coincides with my H1-B expiration and I can just renew the H1 but if it's less than that what do I do as technically I am no longer in status when the I-94 expires.

So the other question is, what do you do when your parolee I-94 expires and you haven't received the green card yet?

06-07-2009, 09:30 AM

Thanks for your reply. What is parolee I-94 means. I entered USA in 2003 and never went back for stamping on renewal of my H-1B. Extention of my H-1b is beyond 6th year based on approved I-140. I am not planning for stamping of my H-1b.

In above circumstances, and once I use Advance Parole, can I renew my H-1b with the same employer without any problem?

06-07-2009, 09:46 AM
"parolee" means you were admitted in the US under Advance Parole. It's their equivalent of saying you're pending adjustment of status. Something of this nature will appear on your I-94 under "Class". Once you enter using AP technically your status will be no longer H1B but parolee / under adjustment of status.

I am in the same situation. I don't have a stamp and I haven't traveled since 2006. My last H1B extension was approved in 2007.

According to Murthy and this memo (http://www.shusterman.com/cronin51600.html) you are OK to return back to your H1 employer and resume your work without any complications caused by using AP.

I read on other forums that the expiration date on the I-94 you receive when you use AP is 1 year from the date of entry. After the 1 year expires you are still in status but for purposes of getting a driver's license you can use your EAD to prove status. Make sure you renew your H1B when the time comes and as a backup keep renewing your EAD and AP before they expire.

If you have doubts talk to your lawyer. It's not an option for me because mine is totally clueless.

4. If an H-1 or L-1 nonimmigrant has traveled abroad and reentered the United States via advance parole, the alien is accordingly in parole status. How does the interim rule affect that alien's employment authorization?

A Service memorandum dated August 5, 1997, stated that an "adjustment applicant's otherwise valid and unexpired nonimmigrant employment authorization ...is not terminated by his or her temporary departure from the United States, if prior to such departure the applicant obtained advance parole in accordance with 8 CFR 245.2(a)(4)(ii)." The Service intends to clarify this issue in the final rule. Until then, if the alien's H-1 or L-1 employment authorization would not have expired, had the alien not left and returned under advance parole, the Service will not consider a paroled adjustment applicant's failure to obtain a separate employment authorization document to mean that the paroled adjustment applicant engaged in unauthorized employment by working for the H-1 or L-1 employer between the date of his or her parole and the date to be specified in the final rule.

06-07-2009, 11:38 AM
Thanks again Mariusp for clarification. Next week I will take my lawyer's appointment and update you as to the reply I get from him.