Advance Parole Discussion

[sswaitinggc]

Hi All, Anybody have experience with emergency Advance parole, My Mother in law is not doing well and hence my wife wanted to travel immediately, I submitted by I485 and parole 1st of this month and have not got the receipt yet (My attorney is very slow in responding so not sure if he got it yet...), I took infopass appt for next week and see if I can speak to someone in local office and help getting the parole. Pls let me know your advise and experience if someone had similar situation.

[nishant2200]

Hi All, Anybody have experience with emergency Advance parole, My Mother in law is not doing well and hence my wife wanted to travel immediately, I submitted by I485 and parole 1st of this month and have not got the receipt yet (My attorney is very slow in responding so not sure if he got it yet...), I took infopass appt for next week and see if I can speak to someone in local office and help getting the parole. Pls let me know your advise and experience if someone had similar situation.

Sorry for bad situation. From what I know, there is no provision to expedite an AP issuance request.

If your wife already has valid H1 or H4, but no stamp, she will have to go to consulate for stamping in order to re-entry. If you are by any chance worried that this may trigger an investigation into the underlying H1 you hold or she holds, then I might suggest she just wait there till you get AP issued, which you can then send via courier to her. If she waits long enough for GC to be issued, I believe she would have to go to consulate to get an immigrant visa stamp. Since she was here when you applied for I-485, she is ok. I would wait for receipt confirmation for peace of mind. These are just my thoughts, others may correct, add as necessary please.

[knight]

I think there is. A friend of mine was in a similar situation. He had a family emergency back home and did not get his AP. So, he called the customer service center and explained his situation. Not sure which level he spoke to, but they took his details and expedited his application. He got his AP in a week. You might want to try that.

Nishant - I think it is not legal to send AP approval documents to a person who is outside the country. Not 100% sure though.



Sorry for bad situation. From what I know, there is no provision to expedite an AP issuance request.

If your wife already has valid H1 or H4, but no stamp, she will have to go to consulate for stamping in order to re-entry. If you are by any chance worried that this may trigger an investigation into the underlying H1 you hold or she holds, then I might suggest she just wait there till you get AP issued, which you can then send via courier to her. If she waits long enough for GC to be issued, I believe she would have to go to consulate to get an immigrant visa stamp. Since she was here when you applied for I-485, she is ok. I would wait for receipt confirmation for peace of mind. These are just my thoughts, others may correct, add as necessary please.

[nishant2200]

I think there is. A friend of mine was in a similar situation. He had a family emergency back home and did not get his AP. So, he called the customer service center and explained his situation. Not sure which level he spoke to, but they took his details and expedited his application. He got his AP in a week. You might want to try that.

Nishant - I think it is not legal to send AP approval documents to a person who is outside the country. Not 100% sure though.

also from net search it looks like there are complications associated with leaving when AP is pending and not approved. Anyone else chime in if you know, it looks much more complicated than feels. I am convinced now that its better to just get the emergency approval and then go.

[Spectator]

also from net search it looks like there are complications associated with leaving when AP is pending and not approved. Anyone else chime in if you know, it looks much more complicated than feels. I am convinced now that its better to just get the emergency approval and then go.If you leave before the AP is in hand (or at least approved) and are not in legal H or L status at the time you leave, you will abandon the I-485 application under the law. I can quote the relevant portions, if you like. It is your situation when you DEPART the USA that determines this, not when you try to re-enter, so sending the AP after approval doesn't overcome this. If they are in valid H or L status and leave before the AP is approved, then they must have a valid H or L visa to return.

In plainer language, USCIS addressed this when answering an AILA query http://www.uscis.gov/files/nativedocuments/AILA_2Apr08.pdf It is covered in the response to question 26.


USCIS Response: Advance parole granted to those outside the U.S. is an extraordinary measure used sparingly to bring an otherwise inadmissible alien to the U.S. for a temporary period due to a compelling emergency or significant public benefit. It is not to be used to circumvent the normal visa issuance process.

Advance parole that is sought to preserve the pendency of an I-485 application must be applied for and granted before the alien’s departure from the U.S.


If the above non-immigrants filed adjustment applications prior to departing the U.S., they need not also have filed for advance parole where they have a valid NIV that may be presented at a port of entry. This of course assumes these same individuals have maintained their status (8 CFR 245.2(a)(4)(ii)(C) and(D)).

If, however, they have failed to maintain their non-immigrant status, advance parole must have been granted prior to their departure from the U.S. or their adjustment application shall be deemed abandoned.

If an H or L non-immigrant with a pending adjustment application appears at a port of entry and presents both an I-512 and his/her valid NIV, CBP should advise the alien that he or she must choose whether to use the H or L visa or the advance parole document.
Do check with an immigration lawyer. The consequences of the wrong action can be severe. Never solely rely on internet advice, even mine.

[gcseeker]

Spec and Nishant

Thanks for clarifying on the depature prior to AP being granted issue.It made me aware that there might be problems with the scenario.

The wording of the document is making me uncomfortable .Specifically the "granted before alien's departure part from US". I will have to make an decision on a similar situation where my spouse who is on a H4 visa and has maintained her status will have to travel to India sometime in Feb2012 . My 7th year H1 extension has been approved recently and I had planned for her to attend the visa interview and get her extension stamped as well.Technically if dates move in the next bulletin and I get current the AP would not have been granted by the time she leaves.

Now leaving aside problems associated with the visa stamping.Would she have an problem at the POE with an chance the officer might raise an question of I-485 having being abandoned ( even though the applicant was present in the USA when the application was filed and if she had an copy of the receipt ) .






If you leave before the AP is in hand (or at least approved) and are not in legal H or L status at the time you leave, you will abandon the I-485 application under the law. I can quote the relevant portions, if you like. It is your situation when you DEPART the USA that determines this, not when you try to re-enter, so sending the AP after approval doesn't overcome this. If they are in valid H or L status and leave before the AP is approved, then they must have a valid H or L visa to return.

In plainer language, USCIS addressed this when answering an AILA query http://www.uscis.gov/files/nativedocuments/AILA_2Apr08.pdf It is covered in the response to question 26.

[pdfeb09]

What does it mean when they say that a I-485 application is deemed abandoned? Can it be revived by applying for AOS again? Or does it mean you have just wasted a whole bunch of years only to go through the steps(labor,140 and 485) again? Do you keep your priority date from the previous application?

Edited: I guess since you are out of the country you cannot apply for AOS anyways.. would you be allowed to do a CP then? with your current priority date?


If you leave before the AP is in hand (or at least approved) and are not in legal H or L status at the time you leave, you will abandon the I-485 application under the law.

[Monica12]

If you leave before the AP is in hand (or at least approved) and are not in legal H or L status at the time you leave, you will abandon the I-485 application under the law. I can quote the relevant portions, if you like. It is your situation when you DEPART the USA that determines this, not when you try to re-enter, so sending the AP after approval doesn't overcome this. If they are in valid H or L status and leave before the AP is approved, then they must have a valid H or L visa to return.

In plainer language, USCIS addressed this when answering an AILA query http://www.uscis.gov/files/nativedocuments/AILA_2Apr08.pdf It is covered in the response to question 26.
100% agree.. Do not leave without AP in hand. If you have valid H1/H-4 status, wait for the receipts atleast of I-485, EAD and AP

[Spectator]

Spec and Nishant

Thanks for clarifying on the depature prior to AP being granted issue.It made me aware that there might be problems with the scenario.

The wording of the document is making me uncomfortable .Specifically the "granted before alien's departure part from US". I will have to make an decision on a similar situation where my spouse who is on a H4 visa and has maintained her status will have to travel to India sometime in Feb2012 . My 7th year H1 extension has been approved recently and I had planned for her to attend the visa interview and get her extension stamped as well.Technically if dates move in the next bulletin and I get current the AP would not have been granted by the time she leaves.

Now leaving aside problems associated with the visa stamping.Would she have an problem at the POE with an chance the officer might raise an question of I-485 having being abandoned ( even though the applicant was present in the USA when the application was filed and if she had an copy of the receipt ) .The "granted before alien's departure part from US" part is specifically referring to the AP in the context of the reply.

In the context of the H4, if she is maintaining H4 status at the time she departs, she does not abandon any I-485 she might have pending at that time, since this is allowed by law.


If the above non-immigrants filed adjustment applications prior to departing the U.S., they need not also have filed for advance parole where they have a valid NIV that may be presented at a port of entry. This of course assumes these same individuals have maintained their status (8 CFR 245.2(a)(4)(ii)(C) and(D)).

If the AP has not been granted at the time she departs, it means she has no other option but to return using a valid H4 visa and presenting it at POE IMO.

Do check with an immigration lawyer.

kd does bring up a valid point of view, but the same is true of every other site I have ever visited. Some advice is outright dangerous and plain incorrect.

I do not offer legal advice and would always advise checking with an immigration lawyer, because some issues can be very fact specific.

In my defence, I have backed up my opinion by pointing to specific documents, issued by and hosted on the relevant Government Agency's website and I can also point to the specific INA laws governing this issue. That gives people the chance to make their own mind up.

I do not comment unless I am far more than reasonably confident in the reply - the consequences of guessing and using internet wisdom don't bear thinking about. If I have any doubts, I will spell them out. Often, even lawyers have differing interpretations.

For instance, I am not going to say it OK to travel before the AP is granted because other people have got away with it before. That doesn't make the action lawful, when the law is entirely contrary to that action.

[Monica12]

Spec and Nishant

Thanks for clarifying on the depature prior to AP being granted issue.It made me aware that there might be problems with the scenario.

The wording of the document is making me uncomfortable .Specifically the "granted before alien's departure part from US". I will have to make an decision on a similar situation where my spouse who is on a H4 visa and has maintained her status will have to travel to India sometime in Feb2012 . My 7th year H1 extension has been approved recently and I had planned for her to attend the visa interview and get her extension stamped as well.Technically if dates move in the next bulletin and I get current the AP would not have been granted by the time she leaves.

Now leaving aside problems associated with the visa stamping.Would she have an problem at the POE with an chance the officer might raise an question of I-485 having being abandoned ( even though the applicant was present in the USA when the application was filed and if she had an copy of the receipt ) .
Gcseeker, Q and Spec have covered it very well. If she has the receipts of I-485, AP etc to show that she was present in US when she filed and is on valid h4 status..no problem at POE regarding abaondning status etc. When she returns back, she will need to have a valid H-4 stamp on her Passport ( either old or new H-4 stamp). Please check with lawyer also.

[gcseeker]

Spec

Thanks a ton for responding . As always your answers are very detailed and it helps immensely.

Also will consult an lawyer before taking any steps . Thanks again to Q,Spec,Pedro and Kd2008 for clarifying and answering my question.


The "granted before alien's departure part from US" part is specifically referring to the AP in the context of the reply.

In the context of the H4, if she is maintaining H4 status at the time she departs, she does not abandon any I-485 she might have pending at that time, since this is allowed by law.



If the AP has not been granted at the time she departs, it means she has no other option but to return using a valid H4 visa and presenting it at POE IMO.

Do check with an immigration lawyer.

kd does bring up a valid point of view, but the same is true of every other site I have ever visited. Some advice is outright dangerous and plain incorrect.

I do not offer legal advice and would always advise checking with an immigration lawyer, because some issues can be very fact specific.

In my defence, I have backed up my opinion by pointing to specific documents, issued by and hosted on the relevant Government Agency's website and I can also point to the specific INA laws governing this issue. That gives people the chance to make their own mind up.

I do not comment unless I am far more than reasonably confident in the reply - the consequences of guessing and using internet wisdom don't bear thinking about. If I have any doubts, I will spell them out. Often, even lawyers have differing interpretations.

For instance, I am not going to say it OK to travel before the AP is granted because other people have got away with it before. That doesn't make the action lawful, when the law is entirely contrary to that action.

Monica behen

Thanks for confirming the information.


Gcseeker, Q and Spec have covered it very well. If she has the receipts of I-485, AP etc to show that she was present in US when she filed and is on valid h4 status..no problem at POE regarding abaondning status etc. When she returns back, she will need to have valid H-4 stamping( either old or new H-4 stamp)

[Monica12]

Do check with an immigration lawyer.

kd does bring up a valid point of view, but the same is true of every other site I have ever visited. Some advice is outright dangerous and plain incorrect.

I do not offer legal advice and would always advise checking with an immigration lawyer, because some issues can be very fact specific.

In my defence, I have backed up my opinion by pointing to specific documents, issued by and hosted on the relevant Government Agency's website and I can also point to the specific INA laws governing this issue. That gives people the chance to make their own mind up.

I do not comment unless I am far more than reasonably confident in the reply - the consequences of guessing and using internet wisdom don't bear thinking about. If I have any doubts, I will spell them out. Often, even lawyers have differing interpretations.

For instance, I am not going to say it OK to travel before the AP is granted because other people have got away with it before. That doesn't make the action lawful, when the law is entirely contrary to that action.
Very well said Spec, some advise out there can be very dangerous and not correct at all. Always should check with a COMPETENT lawyer.
I also refrain from answering a question unless I'm quite sure about it. I think I'm going to put a dislcaimer under my posts, the way Veni has :)

[gcseeker]

Sandeep11

Please refer to the below article from Muthy.com ,though it is a little dated.Also one more link from the Law offices of Shusterman referring specifically to the Cronin memo

http://www.murthy.com/news/UDnewins.html

http://shusterman.com/h1blvisasmemoworkingadvanceparole.html

"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."

The status could be stamped as parolee on the I-94 at port of entry but theH1B does not get cancelled is what the cronin memo is saying



"1) Suppose a person does not have a valid H1B stamping in his passport (say, the old H1B stamp expired and his new stamping attempt at a consulate was a failure ). He has valid advance Parole. In port of entry can the person say that he has valid H1B I-797 and would like to work on H1B rather than EAD?

AT the POE they are looking for valid documents. Even if you enter using AP, this does not invalidate your H1B. I did same thrice and have no issues. Only once an officer asked whether I am still with the same company for which I replied yes.

Will the Port of Entry people cancel the I-797 and give an I94 based on Advance Parole? They do not cancel your I-797 as entering using AP does not invalidate it. They will issue a new I-94 and mark it as 'Pending AOS', if you enter using AP.

After doing that can the person get a new I-94 while extending the same I-797 in the future to get a new I-94? Very much yes. I did traveled thrice and extended my H1 after each time with the same employer

2) Suppose a person has a valid H1B visa stamped on his passport as well as a valid Advance Parole.
While entering the country through a port of entry if the person shows only the valid H1B visa, the Port of entry computer system will prompt the officer to ask the Advance Parole from the H1B person. The officer will say, "You can work in H1B, but u cannot hide AP". Show your AP. Is this true?

If you have valid visa and enter using valid H1, I do not think they request your to provide AP. They can view all transactions related to you and very well know that you have a valid AP, EAD based on pending I-485."

[gcseeker]

Okay I think I got the answer finally on the differing opinions and experiences at various forums.Here is the answer copied from one of the forums

There are a substantial number of EB-485 filers who maintain a H-1B status and at the same time possess an Advance Parole. Some of these EB-485 filers may want to travel on Advance Parole rather than on H-1B because of the complication and delay in obtaining the H-1B visa stamp at the visa posts.
* People are confused as to whether they can return to the U.S. using Advance Parole and continue the H-1B employment without EAD. The answer to this question is confusing because the legacy INS flip-flopped itself in the past. Initially, it was policy that such H-1B alien who returns to the U.S. without EAD could not work as he/she was no longer H-1B nonimmigrant and did not have employment authorization. However, this memorandum was short-lived, being later amended and rescinded.
* The current rule is that the H-1B aliens who return to the U.S. using Advance Parole will be able to resume the employment authorization which is inherent in the H-1B status inasmuch as the following conditions are met: (1) The employment is resumed with the same H-1B employer. (2) The H-1B approval must remain valid, even though one does not need a valid H-1B visa stamp. Once the H-1B validity expires, so does the employment authorization. Such an alien cannot continue employment unless he/she obtains either EAD or extension of H-1B status. The H-1B alien returning to the U.S. as a parolee when they use Advance Parole and their status remains a parolee and not a H-1B nonimmigrant, but current rule and policy allow such H-1B approved aliens two benefits pending finalization of its policy on this issue and release of a regulation.

[sandeep11]

gcseeker,

I never meant to say that the H1 will become Invalid. If you look at both the scenarios I mentioned I say that when you use AP to reenter your status will be 'Parolee'. If you have underlying H1 which is still valid then you would get back to the H1 status only when you file for extension next time or exit and reenter on a H1 visa.

Thanks for your reply.


Sandeep11

Please refer to the below article from Muthy.com ,though it is a little dated.Also one more link from the Law offices of Shusterman referring specifically to the Cronin memo

http://www.murthy.com/news/UDnewins.html

http://shusterman.com/h1blvisasmemoworkingadvanceparole.html

"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."

The status could be stamped as parolee on the I-94 at port of entry but theH1B does not get cancelled is what the cronin memo is saying

[narendarrao]

I dont know if this is important to look at or already discussed.

Major receipt volumes in September 2011 include: 77,928 I-90 green card renewals/replacements; 68,216
I-765 employment authorizations; 55,362 I-130 immediate/all other petitions; 43,393 I-485 applications to
adjust status; 34,235 I-129 forms filed; 19,299 I-131 travel document/advance parole.

 Major volumes of pending applications at the end of September 2011 include: 514,094 I-130 immediate/all
other petitions; 351,785 I-485 applications to adjust status; 308,134 I-90 green card renewals/replacements;
143,493 I-765 employment authorizations; 110,095 I-751 remove conditions spouse jointly/waive;
69,988 I-129 forms filed; 58,7065 I-131 travel document/advance parole.

http://www.uscis.gov/USCIS/Resources/Reports/Applications-for-Benefits/applications-for-benefits-2011-sep.pdf

[RMS_V13]

Guys..Since this is urgent..I request help.

I have a valid H4 stamp and date is current Jan 1st. I have to go back to India end of Feb by which I may not get my AP. Can I travel in and out without the Advance parole purely on H4? My husband is on H1 B also no intent to transfer to EAD.

I read online that travelling without AP means abandoning my I 485. Is this true

[veni001]

mygctracker,

Please refer to Federal Register Vol 72 No. 2011.

You can download PDF here (http://www.gpo.gov/fdsys/pkg/FR-2007-11-01/pdf/FR-2007-11-01.pdf), refer to pages 61791-2


Guys..Since this is urgent..I request help.

I have a valid H4 stamp and date is current Jan 1st. I have to go back to India end of Feb by which I may not get my AP. Can I travel in and out without the Advance parole purely on H4? My husband is on H1 B also no intent to transfer to EAD.

I read online that travelling without AP means abandoning my I 485. Is this true

RMS_V13,

Yes you can, please refer to my responses to mygctracker few pages back.

Please make sure you will not miss bio-metrics appointment!

[Jan2008]

Guys..Since this is urgent..I request help.

I have a valid H4 stamp and date is current Jan 1st. I have to go back to India end of Feb by which I may not get my AP. Can I travel in and out without the Advance parole purely on H4? My husband is on H1 B also no intent to transfer to EAD.

I read online that travelling without AP means abandoning my I 485. Is this true


Veni is definately true here... but my two cents. If you are current as of Jan 1st, 2012 and you are planning a trip to India then the primary applicant will have to wait for you to come back and then file I-765, I-131, I-485. Again this is not at all a good idea since the dates can bounce back to 2007 and you may not get a chance to file for another few months in good case. Reason being is that the applicant and all dependents have to be in the country when the case is being processed. If you chose to leave while the case is in process and you miss the bio exam then your case is considered abondoned even if the primary applicant is available. If your trip is planned for a couple weeks then you may want to wait till the feb VB comes out which usually happens around 10th or 12th of each month and see if the dates have progressed/ stagnant or have bounced back. If the dates remain same then you can buy another month and file end of Feb when you are back. Again there is a risk but make sure you check all your options before you decide antything. It's better to be safe than sorry. Hope this helps.

[RRRRRR]

Guys..Since this is urgent..I request help.

I have a valid H4 stamp and date is current Jan 1st. I have to go back to India end of Feb by which I may not get my AP. Can I travel in and out without the Advance parole purely on H4? My husband is on H1 B also no intent to transfer to EAD.

I read online that travelling without AP means abandoning my I 485. Is this true

Hi RMS,

You have to make sure when your application reaches USCIS you need to be in USA along with other applicants. You do not need to be in US during the whole process but it has to be planned carefully depending on the case.

Two cases
1)Assuming you have a valid visa for your return and do not have to for stamping. Goa head and file 485 ASAP in January, If you get your biometrics are scheduled during your traveling days then approach the center for a early walk in with your tickets and explain the situation and worst case you can always request for a new date, i know people who have rescheduled there appointment this in the past, the only downside being that your new date may be 1 to 2 months apart. Someone did mentioned in previous pages that there is something like urgent Advance payrole and you can get that going through your lawyer or using INFOPASS - check on this one as i do not know the process.

2) If you do not have a valid visa, then make sure your application gets submitted in ASAP in first week of January, this will make sure you get your fingerprinting done before you leave. In the meanwhile gather information regarding Urgent AP and get on top of it by mid Feb to make sure you get it before you leave. This will make sure incase you get into issues regarding Visa stamping then you will be able to travel back on AP..

Hope it will help you. Let me know if you have any follow up questions on this

[vizcard]

This is second hand but my brother in law told me that with a receipt you could go to a field office and get it done immediately. Not sure how accurate it is.

[Kanmani]

I know that one should not travel on a pending AP due to risk of abandonment

The AOS beneficiary is required to be physically present inside USA for filing I-485 , once the application is received by the USCIS ( with a proof of hard copy receipt) , if you are maintaining a dual intent non-immigrant status (H1B, H-4, L-1 or L-2) having valid stamp ( or planning for stamping ) , you can travel to and fro without AP.

Travelling on pending Advance Parole is not abandonment of AP. You can use the AP later for next trip .

Note:
This is not a legal advice. Please consult an Immigration attorney.

[Pundit Arjun]

You can find some info at CM's website on this topic : http://us-non-immigrants.blogspot.com/2011/01/how-to-obtain-emergency-advanced-parole.html

But, then again like the gurus mentioned, check with an immigration attorney.

[vckomara]

I have been a silent everyday watcher of this thread and it's been great. Please remove this after I get a response as it is not relevant to calculations. I am in a situation where I am getting conflicting answers even from Attorneys.

I travel overseas twice a month and have a valid H1B stamped visa till the next 2 years. Now I am current and will be filing 485 on Feb 1st. According to my Attorney:

I) I can travel overseas after I receive receipt of filing and return on H1B while 485 is in process if I have not applied for AP and EAD.
II) If I file for AP and EAD with 485, I should not travel before the application is "approved" because if I re-enter on H1B, I will void my EAD/ AP.

Now does that sound true? Don't want to challenge the wisdom of an experienced attorney but I read on Murthy website that one can travel on H or L status with valid visa prior to AP approval unless I am reading it wrong. Can any of the Gurus categorically provide their input on this? Has anyone else experienced a similar travel dilemma? I cannot wait fir 3 months for EAD to be approved. It's against the nature of my job. A quick response is greatly appreciated.

[RMS_V13]

VC Komara : I am not sure if your point # 2 is 100% correct. I don't know the specifics of your case so I cannot comment. But when I asked my lawyer if I can travel, he said as long as I have a valid H or L status I can. I should not be using my EAD which means I require an AP to re-enter.


I have been a silent everyday watcher of this thread and it's been great. Please remove this after I get a response as it is not relevant to calculations. I am in a situation where I am getting conflicting answers even from Attorneys.

I travel overseas twice a month and have a valid H1B stamped visa till the next 2 years. Now I am current and will be filing 485 on Feb 1st. According to my Attorney:

I) I can travel overseas after I receive receipt of filing and return on H1B while 485 is in process if I have not applied for AP and EAD.
II) If I file for AP and EAD with 485, I should not travel before the application is "approved" because if I re-enter on H1B, I will void my EAD/ AP.

Now does that sound true? Don't want to challenge the wisdom of an experienced attorney but I read on Murthy website that one can travel on H or L status with valid visa prior to AP approval unless I am reading it wrong. Can any of the Gurus categorically provide their input on this? Has anyone else experienced a similar travel dilemma? I cannot wait fir 3 months for EAD to be approved. It's against the nature of my job. A quick response is greatly appreciated.

[veni001]

I have been a silent everyday watcher of this thread and it's been great. Please remove this after I get a response as it is not relevant to calculations. I am in a situation where I am getting conflicting answers even from Attorneys.

I travel overseas twice a month and have a valid H1B stamped visa till the next 2 years. Now I am current and will be filing 485 on Feb 1st. According to my Attorney:

I) I can travel overseas after I receive receipt of filing and return on H1B while 485 is in process if I have not applied for AP and EAD.
II) If I file for AP and EAD with 485, I should not travel before the application is "approved" because if I re-enter on H1B, I will void my EAD/ AP.

Now does that sound true? Don't want to challenge the wisdom of an experienced attorney but I read on Murthy website that one can travel on H or L status with valid visa prior to AP approval unless I am reading it wrong. Can any of the Gurus categorically provide their input on this? Has anyone else experienced a similar travel dilemma? I cannot wait fir 3 months for EAD to be approved. It's against the nature of my job. A quick response is greatly appreciated.

vckomara,

This was answered several times!

Please refer to Federal Register Vol 72 No. 211, you will find the answer.

You can download it here (http://www.gpo.gov/fdsys/pkg/FR-2007-11-01/pdf/FR-2007-11-01.pdf), refer to pages 61791-2

[Spectator]

I have been a silent everyday watcher of this thread and it's been great. Please remove this after I get a response as it is not relevant to calculations. I am in a situation where I am getting conflicting answers even from Attorneys.

I travel overseas twice a month and have a valid H1B stamped visa till the next 2 years. Now I am current and will be filing 485 on Feb 1st. According to my Attorney:

I) I can travel overseas after I receive receipt of filing and return on H1B while 485 is in process if I have not applied for AP and EAD.
II) If I file for AP and EAD with 485, I should not travel before the application is "approved" because if I re-enter on H1B, I will void my EAD/ AP.

Now does that sound true? Don't want to challenge the wisdom of an experienced attorney but I read on Murthy website that one can travel on H or L status with valid visa prior to AP approval unless I am reading it wrong. Can any of the Gurus categorically provide their input on this? Has anyone else experienced a similar travel dilemma? I cannot wait fir 3 months for EAD to be approved. It's against the nature of my job. A quick response is greatly appreciated.vckomara,

If you return on H1B then the pending Advance Parole application is not abandoned.


Advance Parole Pending - Travel During.

AILA: The new 1-131 instructions say: “If you travel before the advance parole document is issued, your application will be deemed abandoned if (1) you depart from the United States.”

We would like to confirm that abandonment of a pending advance parole application does not occur if the foreign national is otherwise authorized to depart and return either because the foreign national (a) already possesses a valid I-512L and returns before the 1-512L expires, or (b) has an 1-485 pending and is re-admitted as an H-1, H-4, L-1, L-2, K-3, K-4, V-2, or V-3.

USCIS: (a) If a foreign national (i) already possesses a valid, unexpired advance parole, (ii) applies for a new advance parole while he/she is present in the U.S., and (iii) then departs the U.S., the foreign national must return to the U.S. during the validity period of the current advance parole already in his or her possession. If the foreign national returns timely, abandonment of the pending advance parole application would not occur. However, the foreign national may not remain abroad after the initial advance parole expires and then seek to re-enter at a later time using the subsequent advance parole that was pending adjudication at the time the person departed the U.S.

(b) Yes, we confirm that that abandonment of a pending advance parole application does not occur if the foreign national is otherwise authorized to depart and return because the foreign national has an 1-485 pending and is readmitted as an H-1, H-4, L-1, L-2, K-3, K-4, V-1, V-2, or V-3.

http://www.uscis.gov/files/nativedocuments/AILA_2Apr08.pdf ADDENDUM V

Travel has no effect on a pending EAD.

[vckomara]

Greatly appreciate your quick response. That's what I thought but just wanted to make sure I am not missing anything in my interpretation.

[codesmith]

vckomara,

This was answered several times!

Please refer to Federal Register Vol 72 No. 211, you will find the answer.

You can download it here (http://www.gpo.gov/fdsys/pkg/FR-2007-11-01/pdf/FR-2007-11-01.pdf), refer to pages 61791-2

I'm little confused -
1. can I travel to India after receiving my 485 receipts and I'm on H1 extension ( visa not stamped ) - and get it stamped.
Is it considered as valid H1 and 485 not abandoned ?
2. I go to India and my EAD/AP is received at US address and then some one courier it to me to India and I use AP to enter US. Is it valid ?

[gc0907]

1: Yes, if you get a valid Visa stamp, you can come back using that. And since you have the recipts, 485 is not abandoned.
2: No, you must have AP with you before leaving.

Keep in mind...you need a valid visa stamp for re-entering. You cannot enter with recipts. So if you can wait, then go once you have AP in hand.



I'm little confused -
1. can I travel to India after receiving my 485 receipts and I'm on H1 extension ( visa not stamped ) - and get it stamped.
Is it considered as valid H1 and 485 not abandoned ?
2. I go to India and my EAD/AP is received at US address and then some one courier it to me to India and I use AP to enter US. Is it valid ?

[codesmith]

1: Yes, if you get a valid Visa stamp, you can come back using that. And since you have the recipts, 485 is not abandoned.
2: No, you must have AP with you before leaving.

Keep in mind...you need a valid visa stamp for re-entering. You cannot enter with recipts. So if you can wait, then go once you have AP in hand.

Thanks.
I didn't know this - you must have AP with you before leaving.
My only worry is getting visa stamped, since it's so difficult to get it stamped in first go and also I'm working on EVC model, not a direct client.

[gc0907]

If it's not urgent, I wouldn't travel without AP.
If something goes wrong while stamping, you are stuck.


Thanks.
I didn't know this - you must have AP with you before leaving.
My only worry is getting visa stamped, since it's so difficult to get it stamped in first go and also I'm working on EVC model, not a direct client.

[kd2008]

https://wwws.whitehouse.gov/petitions#!/response/removing-bottlenecks-visa-process?utm_source=wethepeople&utm_medium=response&utm_campaign=eb2eb3


Official White House Response to Allow Seriously Backlogged EB2/EB3 Beneficiaries with Their I-140 Approved to File I-485 and Apply for EAD & AP
Removing Bottlenecks in the Visa Process

By Felicia Escobar

Thank you for signing the petition "Allow Seriously Backlogged EB2/EB3 Beneficiaries with Their I-140 Approved to File I-485 and Apply for EAD & AP."

The Obama Administration is committed to removing bottlenecks in the current process so that both applicants and businesses can meaningfully participate in our existing immigrant and nonimmigrant visa systems. Due to an outdated visa system that only Congress can change, too many of the world's brightest entrepreneurial minds are not allowed to come to the United States or stay here and thrive. Some have come to the United States, received training at our excellent universities, and then been required to leave. Others simply have been unable to find a path here in the first place.

Today, many I-140 approved beneficiaries from countries such as China and India must wait several years for a visa to become available because of statutory limits on the number of visas that can be issued to nationals of a particular country in a given fiscal year. The proposal outlined in this petition asks that beneficiaries of approved I-140 immigrant worker petitions be allowed to apply for adjustment of status while they wait for visas to become available, which would allow the accompanying interim benefits of an Employment Authorization Document (EAD) and Advance Parole -- in other words, the ability to work in the United States and to leave the United States and return while awaiting a visa. Unfortunately, the U.S. Citizenship and Immigration Services (USCIS) cannot change the statutory requirement that a visa must be immediately available at the time an individual is allowed to file an application to adjust their status. This proposed reform can only be made by Congress through changes to the law.

Over the past year,top Administration officials have traveled throughout the country to talk with thousands of entrepreneurs and small business ownersas part of listening sessions organized by the President's Council on Jobs and Competitiveness, the U.S. Small Business Administration, the White House Business Council, and the White House Startup America Initiative. The message we hear is resounding: our Nation's immigration system is broken and must be reformed.

The President has outlined his vision for restoring responsibility and accountability to the broken immigration system in the Blueprint for Immigration Reform (pdf), which outlines the challenges we must tackle and the solutions we must implement if we are to build a 21st century immigration system. The President believes that this will require:

Continuing to make border security the responsibility and priority of the federal government;
Holding accountable businesses that break the law by exploiting undocumented workers;
Making those living in the United States illegally take responsibility for their actions, before they can get on a path to legalization, by passing a background check, paying fines, paying taxes, and getting right with the law; and
Strengthening our economic competiveness by creating a legal immigration system that meets our 21st century economic and security needs. This includes making reforms to the existing employment- and family-based immigration system, including existing caps to ensure successful high-skilled immigrants are able to remain in the U.S. permanently.

The President is willing to sit down with any Congressional leader -- Republican, Democrat, or Independent -- who shares his commitment to fixing the broken immigration system so that it meets America's economic and security needs. We need leaders who are willing to engage in a constructive policy debate on this important issue.

As we continue to build support for legislative reform, the Administration will continually look for ways to improve the current immigration system, and we have proposed several important changes in the past several months. Recently, USCIS Director Alejandro Mayorkas joined the President's Council on Jobs and Competiveness in Pittsburgh to announce the "Entrepreneurs in Residence" initiative, which will utilize industry expertise to strengthen USCIS policies and practices surrounding immigrant investors, entrepreneurs, and workers with specialized skills, knowledge or abilities.

You can continue to act and help the Administration make lasting change to immigration. President Obama has called for a national conversation on immigration reform that builds a bipartisan consensus to fix our broken immigration system so it works for America's 21st century economy. But he can't do it alone. Over the last several months, dozens of communities have answered his call, holding meetings with local business leaders, faith leaders, law enforcement leaders and others to discuss the changes necessary to create a 21st century immigration system. He is asking you and other Americans to continue the conversation in your community by hosting a roundtable. Find out more and tell us about your roundtable at http://www.whitehouse.gov/immigration.

Thank you for making your voice heard. We greatly appreciate your interest and hope that you continue to share your views with the Administration.

Felicia Escobar is Senior Policy Advisor for the Domestic Policy Council


All BS but at least they are taking notice

[bvsamrat]

If one enters on AP what date I-94 will carry? What happens if this expires and new EAD/IP card arrives, but expired I-94


That is my understanding too.


We already have a thread created for 2013 at http://www.qesehmk.org/forums/showthread.php?1217-EB2-3-Predictions-(Rather-Calculations)-2013

Right now only moderators can post there. So am waiting moderators to take their spots - so that they can update it throughout the year. Yes this thread indeed needs to be closed and concluded. Will do so from my end. But would be good if others do as well.

[Pundit Arjun]

The date I-94 carries will be something that the Immigration Officer decides. For Eg: My AP expires by April of next year but the Officer gave me 1 year I94 validity till Sept.2013.

I dont think there is an issue with AP renewal and an expired I94, but not sure. I will wait to hear from someone who has gone through this and check with the attorney.


If one enters on AP what date I-94 will carry? What happens if this expires and new EAD/IP card arrives, but expired I-94

[bvsamrat]

Can someone also clarify how to extend the Drivers license with EAD/AP? It may be state dependent, but in general - does it have to year by year status check?


The date I-94 carries will be something that the Immigration Officer decides. For Eg: My AP expires by April of next year but the Officer gave me 1 year I94 validity till Sept.2013.

I dont think there is an issue with AP renewal and an expired I94, but not sure. I will wait to hear from someone who has gone through this and check with the attorney.

[manzoorraza]

bvsamrat,
Dont know what happens in other states but in NJ as far as documentation requirement goes you need a copy of the EAD card, bank statement, address proof and valid passport to get it renewed. There are options for replacing the bank statement and passport with other things most of which are not applicable for us (especially for passport). I had my license renewed on the basis of EAD card in May this year, in NJ, and they only gave one with an expiration date till the date of expiration of the EAD card itself. Earlier they would give a couple of months extra based on H1 expiration and when I reminded the officer of the same I was told "Not Anymore" as "that is what has been communicated to us". So atleast for NJ residents we have to hope that the EAD renewals come before the EAD expires or it will be a problem. Hope this helps.


Can someone also clarify how to extend the Drivers license with EAD/AP? It may be state dependent, but in general - does it have to year by year status check?

[Pedro Gonzales]

Quick question to other APers. When we re-enter the country on AP and if our H1B renewal has not been stamped on our passport, presumably we're now working on our EADs (although there is some debate on whether the H1B is still valid or not).

My question: Do we, our lawyers, or our employers need to do anything to signify this change? Does someone need to send something in to the USCIS, DoS, DoL or anyone else?

[Spectator]

Quick question to other APers. When we re-enter the country on AP and if our H1B renewal has not been stamped on our passport, presumably we're now working on our EADs (although there is some debate on whether the H1B is still valid or not).

My question: Do we, our lawyers, or our employers need to do anything to signify this change? Does someone need to send something in to the USCIS, DoS, DoL or anyone else?Pedro,

The Cronin Memo (http://shusterman.com/h1blvisasmemoworkingadvanceparole.html) governs this situation and is discussed in this Murthy Article (http://www.murthy.com/2008/03/21/effect-of-travel-while-in-h1b-l-1-status-and-pending-i-485/).

If you returned using an AP, usually the I-94 says "Parolee" and is valid for 1 year from entry.

If you use AP to enter the USA, you are a Parolee. If you use an H1B visa (stamp), you are granted admission in H1B status. It is impossible to be admitted in H1B status using Advance Parole. AP is not an admission.

Part of the Cronin Memo says that, had your H1B Employment Authorization not expired, then not using an EAD when returning on AP to work for the H1B Employer will not be considered Unauthorized Employment.

From the Cronin Memo:-


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.

That is entirely different to saying the person is in H1B status. In fact, the Cronin Memo makes this clear.


5. Should an alien returning to the United States from travel abroad who has a valid 1-512 and a valid H-1 or L-1 nonimmigrant visa be paroled in or readmitted in H-1 or L-1 status?

If an alien has a valid H-1 or L-1 nonimmigrant visa and is eligible for H-1 or L-1 nonimmigrant status and also has a valid Form I-512, he or she may be readmitted into H-1 or L-1 status or be paroled into the United States.

It is the alien’s prerogative to present either document at inspection.

However, if an alien presents both a valid H-1 or L-1 nonimmigrant visa and a valid Form I-512, and the alien is eligible for the H-1 or L-1 nonimmigrant classification, the Service should inform the alien that H-1 and L-1 nonimmigrants no longer need to use advance parole to preserve pending applications for adjustment of status and should admit the alien in H-1 or L-1 nonimmigrant status.

The fact that an alien has applied for advance parole and received Form I-512 does not compel him or her to use the advance parole.

If the alien is not admissible as an H-1 or L-1 nonimmigrant, then he or she cannot be readmitted as an H-1 or L-1 nonimmigrant. Instead, such an alien may be paroled into the United States.
A person would not be admissible as an H1B non-immigrant if they did not have a valid H1B visa (stamp).

The Cronin Memo also allows the H1B to be extended after returning using AP. If approved, the Parole is terminated and the person returns to H1B status. This is evidenced by the I-94 received with the extension approval.


3. If an H-1 or L-1 nonimmigrant has traveled abroad and was paroled into the United States via advance parole, the alien is accordingly in parole status. Does this interim rule allow him or her to now apply for an extension of nonimmigrant status?

Until the final rule is published, an alien who was an H-1 or L-1 nonimmigrant, but who was paroled pursuant to a grant of advance parole, may apply for an extension of H-1 or L-1 status, if there is a valid and approved petition. If the Service approves the alien’s application for an extension of nonimmigrant status, the decision granting such an extension will have the effect of terminating the grant of parole and admitting the alien in the relevant nonimmigrant classification.

[Spectator]

- H1B can be extended?

The last point does not fit logical chain. It seems that entering the US without a stamp means losing the H1B status (I thought otherwise). If that's the case, how can the H1B be *extended*? Would you not have to apply for a new H1B and be counted against the cap?The Memo specifically allows for the H1B to be extended in these specific circumstances, so the other comment is moot.

Even if it weren't, the person must have an approved I-140 (since they have AP) and would be eligible for approval outside the cap anyway.

I know Ron Gotcher holds the view that it is safer to use EAD, because this is a legacy Memo which could be withdrawn at any time. It's been in place for over a decade now, so the chances seem slim.


- H1B petition cannot be transferred to a new sponsoring employer since it is no longer valid in absence of a stamp
----- This means AC21 is the only way to transfer to a new employer
On the face of it a transfer with EOS does not seem possible until the person regains H1B status. They can do this through the grant of an extension or if they leave the USA and return using a valid H1B visa to gain admission in H1B status.

That is what this section of the Cronin Memo seems to imply:


6. Is an alien who has a multiple entry 1-512 and who has previously been paroled into the United States now eligible for admission as an H-1 or L-1 if he or she is still in possession of a valid H-1 or L-1 visa?

Yes, the alien may be admitted as an H-1 or L-1. However, aliens returning from abroad may only be admitted as an H-1 or L-1 when they have a valid H-1 or L-1 visa (unless visa exempt), remain eligible for H-1 or L-1 classification, and, where there has been a recent change of employer or extension of stay, have evidence of an approved I-129 petition in the form of a notation on the nonimmigrant visa indicating the petition number and the employer’s name, or a notice of action, Form I-797, indicating approval. If they do not meet these criteria, then they use their 1-512.

A new employer can still file an H1B petition (with Consular Processing), but the person (if still a Parolee) would probably have to get a new H1B visa stamp (and use it) to regain H1B status.

The H1B petition is still valid, but the person is not in H1B status.

Remember, other visa classes do not get any benefits of the Cronin Memo - O visa holders for example must use Advance Parole, or abandon their pending AOS applications.

[GhostWriter]

Spec a couple of more questions

1. Does that mean that after returning the person should fill the I-9 form with the employer again and specify that he is using EAD instead of H1-B. So the approved H1-B without the stamp is not of much use (except if I-485 gets denied, but even then you need to go out of US, get stamped and come back in).

2. If I-94 is only issued with one year validity with AP, does that mean that if using AP a person needs to go out and come back in every year if he has once entered using AP. There has to be some other option.



The H1B petition is still valid, but the person is not in H1B status.

[Spectator]

Comments inline.


Spec a couple of more questions

1. Does that mean that after returning the person should fill the I-9 form with the employer again and specify that he is using EAD instead of H1-B. So the approved H1-B without the stamp is not of much use (except if I-485 gets denied, but even then you need to go out of US, get stamped and come back in).

If they wish to use the EAD as the basis for Employmant Authorization then the I-9 would need updating. If it is still on the basis of the approved H1B petition (as allowed in the Cronin Memo) then it would not be altered.

2. If I-94 is only issued with one year validity with AP, does that mean that if using AP a person needs to go out and come back in every year if he has once entered using AP. There has to be some other option.

After the I-94 expires, the person would become an AOS Pending applicant, a period of Authorized Stay by USCIS policy, but not actually a lawful status.

To remain as a Parolee, yes, the person would have to exit the USA and return using a valid AP to receive a new I-94. I believe some people do this to be eligible for FAFSA.

[imdeng]

I was not aware that people on AP are eligible for FAFSA. That is interesting information - and one that may be of value to me in near future.


Comments inline.

[Sirisha]

Hi,
My EAD/AP expires on feb 10th 2013. I applied for my EAD/AP extension today through my attorney.
I am planning to travel to India on Dec30th and return back on Feb2nd 2013. I even booked my tickets. I've my H1 until Sept 2013.

When I come back from India, as my AP expires in Feb 2013, the I-94 will 've expiry as Feb 2013.

These are the scenarios I am worried:
1) If I dont get my AP by the time I come from India, will my status be illegal? Will I've any problem at the POE?

2) If I get my AP when I am in India? can I use that if my husband or someone send it to me?

and also I read in the forum that

The most credible answer appears to be that while you will be working on EAD, your H1B continues to be valid, and you can get it stamped on future trips to India. The only downside of entering on an AP appears to be that your I94 expires when your AP expires (within 1 year) so you will need to make trips abroad every year at least to keep your I94 valid.
So, do I need to travel abroad for keeping my I-94 valid?

My attorney said I'll not have any issue by using my current AP and travel and she also said that though I get my new AP, I cannot use it during this trip and have to come back with the current AP.

Greatly appreciate your suggestions..

[gc0907]

1: Do you have a valid Stamp for your H1B until your return i.e. Feb-02-2013? If yes, you can come back on H1 and no need to worry for AP. You will get a new I-94 on return. If you don't have a valid H1B stamp, then you need a new stamp or can use AP.

2: Since you have AP Valid till Feb-10-2013, you can use it to come back on Feb-02-2013. i.e. you must return on/before the expiration of AP, Feb-10th. Your status will not be illegal.

3: You must have a valid AP before you leave i.e. your husband cannot send you the AP while you are in India.

In short, your attorney is right.


Hi,
My EAD/AP expires on feb 10th 2013. I applied for my EAD/AP extension today through my attorney.
I am planning to travel to India on Dec30th and return back on Feb2nd 2013. I even booked my tickets. I've my H1 until Sept 2013.

When I come back from India, as my AP expires in Feb 2013, the I-94 will 've expiry as Feb 2013.

These are the scenarios I am worried:
1) If I dont get my AP by the time I come from India, will my status be illegal? Will I've any problem at the POE?

2) If I get my AP when I am in India? can I use that if my husband or someone send it to me?

and also I read in the forum that

My attorney said I'll not have any issue by using my current AP and travel and she also said that though I get my new AP, I cannot use it during this trip and have to come back with the current AP.

Greatly appreciate your suggestions..

[Sirisha]

1: Do you have a valid Stamp for your H1B until your return i.e. Feb-02-2013? If yes, you can come back on H1 and no need to worry for AP. You will get a new I-94 on return. If you don't have a valid H1B stamp, then you need a new stamp or can use AP.

In short, your attorney is right.

Thank you for your response.

I do not have h1 stamp, I am not indending to get it stamped. As I work on contarct basis.

Is it ok if I stay in US with I94 which is expired? but have valid AP and EAD as my employer said he will not extend my H1 and I've to work on EAD.

Thanks in advance!

[gc0907]

Yes, that shouldn't be a problem when working on EAD.


Thank you for your response.

I do not have h1 stamp, I am not indending to get it stamped. As I work on contarct basis.

Is it ok if I stay in US with I94 which is expired? but have valid AP and EAD as my employer said he will not extend my H1 and I've to work on EAD.

Thanks in advance!

[Sirisha]

Thank you gc0907!


Yes, that shouldn't be a problem when working on EAD.

[GC-Utopic]

Is this technically possible?

1.H4 to EAD. leave the country for 2 months,

2.enter with valid H4 visa( H-1B is valid) and revert back to EAD.




The Memo specifically allows for the H1B to be extended in these specific circumstances, so the other comment is moot.

Even if it weren't, the person must have an approved I-140 (since they have AP) and would be eligible for approval outside the cap anyway.

I know Ron Gotcher holds the view that it is safer to use EAD, because this is a legacy Memo which could be withdrawn at any time. It's been in place for over a decade now, so the chances seem slim.


On the face of it a transfer with EOS does not seem possible until the person regains H1B status. They can do this through the grant of an extension or if they leave the USA and return using a valid H1B visa to gain admission in H1B status.

That is what this section of the Cronin Memo seems to imply:



A new employer can still file an H1B petition (with Consular Processing), but the person (if still a Parolee) would probably have to get a new H1B visa stamp (and use it) to regain H1B status.

The H1B petition is still valid, but the person is not in H1B status.

Remember, other visa classes do not get any benefits of the Cronin Memo - O visa holders for example must use Advance Parole, or abandon their pending AOS applications.