AP and unstamped H1

[harapatta2012]

Sorry for posting this question here but I needed answer rather quick.

-I am currently working on H1B visa. The current I797 approval is valid until Oct 2013.
-The H1B stamp in my passport has expired and I have not got the new stamping.
- I also have Advance parole and EAD card (Eb2I, Jan 2012 filed). I have not used EAD so far and neither AP.

I am planning to go outside usa in 1 week.
-I want to enter on AP.
I know-
I would not be in H1B status when I enter and would be a Parole. But my H1B petition would be valid and I can use that to continue current employment with same employer.
Also, I can renew my H1B without having to leave USA.

But the issue is what my attorney says-
I need to use EAD to work after I enter as Parole.
Also I need to do consular processing when renew H1B.

Since he's company attorney, I cannot change him.

How can I convince him? (I already sent him Murthy article)

Cronin memo is not that difficult to interpret which many including Spec reffered. Why is so complicated issue that there is so much confusion among attornies?

[Spectator]

Sorry for posting this question here but I needed answer rather quick.

-I am currently working on H1B visa. The current I797 approval is valid until Oct 2013.
-The H1B stamp in my passport has expired and I have not got the new stamping.
- I also have Advance parole and EAD card (Eb2I, Jan 2012 filed). I have not used EAD so far and neither AP.

I am planning to go outside usa in 1 week.
-I want to enter on AP.
I know-
I would not be in H1B status when I enter and would be a Parole. But my H1B petition would be valid and I can use that to continue current employment with same employer.
Also, I can renew my H1B without having to leave USA.

But the issue is what my attorney says-
I need to use EAD to work after I enter as Parole.
Also I need to do consular processing when renew H1B.

Since he's company attorney, I cannot change him.

How can I convince him? (I already sent him Murthy article)

Cronin memo is not that difficult to interpret which many including Spec reffered. Why is so complicated issue that there is so much confusion among attornies?

There are some dangers in relying an a legacy Memo which could be revoked (it is now over 10 years old, so that seems unlikely).

That said, the Cronin memo is very clear on the issue.

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 seems pretty clear that the use of an EAD is not required.

The case when obtaining an H1B extension subsequent to an entry using AP is also fairly clear.

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 determines 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.

If the H1B extension is granted, the Parolee "status" is terminated and the beneficiary of the extension returns to H1B status.

Of course, after using AP, there is the option to depart the USA and return using a valid H1B visa to re-establish H1B status.

I don't know what else to say. Your lawyer is being very conservative. I can only suggest making them aware of the actual Cronin Memo. Another link here.

[harapatta2012]

Spec,

One last thing here.
To apply and get h1B extension, one can do that while working in USA ( like normally its done) and get I797 approval and would not require to do consular processing in India ? Correct?

I dont think it matters here that I would be applying for 10-12th year H1B extension and have already worked on H1B for 8yrs.


Thank you as always. Your help is truly appreciated.

Gurus, please put this post in relevant place and sorry for putting it here. Thanks

There are some dangers in relying an a legacy Memo which could be revoked (it is now over 10 years old, so that seems unlikely).

That said, the Cronin memo is very clear on the issue.




That seems pretty clear that the use of an EAD is not required.

The case when obtaining an H1B extension subsequent to an entry using AP is also fairly clear.



If the H1B extension is granted, the Parolee "status" is terminated and the beneficiary of the extension returns to H1B status.

Of course, after using AP, there is the option to depart the USA and return using a valid H1B visa to re-establish H1B status.

I don't know what else to say. Your lawyer is being very conservative. I can only suggest making them aware of the actual Cronin Memo. Another link here.

[qesehmk]

Your lawyer is wrong. AP simply allows you to continue your previous status without interruption. Your previous status was H1B/AOS Pending. That's what it will be when you reenter.

You don't need to stamp. I am telling this from firsthand experience. I do not think anything has changed since I did it last in 2010 or so.

Sorry for posting this question here but I needed answer rather quick.

-I am currently working on H1B visa. The current I797 approval is valid until Oct 2013.
-The H1B stamp in my passport has expired and I have not got the new stamping.
- I also have Advance parole and EAD card (Eb2I, Jan 2012 filed). I have not used EAD so far and neither AP.

I am planning to go outside usa in 1 week.
-I want to enter on AP.
I know-
I would not be in H1B status when I enter and would be a Parole. But my H1B petition would be valid and I can use that to continue current employment with same employer.
Also, I can renew my H1B without having to leave USA.

But the issue is what my attorney says-
I need to use EAD to work after I enter as Parole.
Also I need to do consular processing when renew H1B.

Since he's company attorney, I cannot change him.

How can I convince him? (I already sent him Murthy article)

Cronin memo is not that difficult to interpret which many including Spec reffered. Why is so complicated issue that there is so much confusion among attornies?

[Spectator]

Spec,

One last thing here.
To apply and get h1B extension, one can do that while working in USA ( like normally its done) and get I797 approval and would not require to do consular processing in India ? Correct?

I dont think it matters here that I would be applying for 10-12th year H1B extension and have already worked on H1B for 8yrs.


Thank you as always. Your help is truly appreciated.

Gurus, please put this post in relevant place and sorry for putting it here. Thanks

harapatta2012,

Correct.

[vizcard]

FYI to the forum.

I know we have discussed this several times but I asked my lawyers (Fragomen) if I could travel on AP and work on H1B. Here's the response I got...

"Yes, you may travel on your advance parole, while working on your H-1B. You can notate your status as H-1B/AOS applicant."

[Pedro Gonzales]

Where do you notate the status? On the I-94 application form?

Just to confirm, you have an approved H1B extension, just haven't got it stamped from the consulate, right?

[qesehmk]

In my experience - Once you have AP - don't need to stamp H1. Just come back using AP. I have done it previously. My passport showed AOS Pending status but the lawyer told me I had dual status i.e. if 485 is rejected H1 will continue as usual.

Where do you notate the status? On the I-94 application form?

Just to confirm, you have an approved H1B extension, just haven't got it stamped from the consulate, right?

[iamdeb]

Hello Friends,

Sorry for posting in this forum. But I need an information on an urgent basis. I plan to visit India soon. While returning I plan to come via Air France through CDG airport. I am on H1b and have my h1b visa stamped on my passport. Would I need a transit visa at Paris airport?
My route is Delhi-Paris (Air France) then Paris-Atlanta(Delta).

Thanks!
Deb

[dorais]

If you have a valid visa stamp, you should not need transit visa.

My mom came in B1 (tourist) visa 3 months back with a change over in Paris (CDG). She has a multiple entry visa that is valid at the time of travel and she did not get transit visa.

Check this link below and also check France consulate website.
http://www.immihelp.com/visas/transi...uirements.html

Hello Friends,

Sorry for posting in this forum. But I need an information on an urgent basis. I plan to visit India soon. While returning I plan to come via Air France through CDG airport. I am on H1b and have my h1b visa stamped on my passport. Would I need a transit visa at Paris airport?
My route is Delhi-Paris (Air France) then Paris-Atlanta(Delta).

Thanks!
Deb

[tendlya]

Me and my wife are travelling to India next month on AP. We have expired H1B visa on passport. We will be flying via Amsterdam. According to the Netherland Embassy visa tool and response from Atlanta Embassy, Indian Passport holders do no need Transit Visa. My question is while departing from USA (Seattle) or at Amsterdam, will there be any issue with expired H1B visa on passport? Do we just need to show EAD/AP combo card if they ask? Does anyone has recent experience? Please share your experience.