Advance Parole Discussion

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.

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Originally Posted by Spectator

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

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Comments inline.

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Originally Posted by 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).

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.

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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.

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Originally Posted by Spectator

Comments inline.

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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

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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?

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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..

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.

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Originally Posted by 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

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..

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Originally Posted by 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.

In short, your attorney is right.

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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!

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

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Originally Posted by Sirisha

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!

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Thank you gc0907!

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Originally Posted by gc0907

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

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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.

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Originally Posted by Spectator

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.

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