Advance Parole Questions- Pls help

[lozolneo]

Hi Q and Spectator and Others: Thank for all the great stuff. I am really looking to see if someone can answer me. I have tried reading a lot on the blog as well as on the web but needed some accurate information please.


Current Situation:

Eb2 India - I-485 Pending. Currently am on H1-B as well as approved 2 year EAD/AP.

Am currently outside the US. Will be returning next week. Do travel a lot for work and work out of overseas office.

Will be entering the US next week on valid H1-B. Will depart the US middle of August. H1-B still valid.

H1-B expires in early September while I am outside the US. Will inform HR to switch me over to EAD.

Re-enter the US after H1-B has expired and plan to do so on AP document.

Questions:

1) When i depart the US in the middle of August- do I have depart in a certain status? I mean do I have to depart on H1-B or on AP? And does this even happen where they note on 'what status' you leave the country. In all these years, (of course i have been on H1-B only), I have never been asked what status I am leaving the country on.

The reason I ask is because the next time I will enter the country it will be after the expiration of my H-1B and on the AP and I am wondering if I have the leave the country on the same status on which I expect to enter? In my case, since I will be coming back to the country on AP in the future, do I have to leave on AP and not on the H1-B (which is valid when I leave but will have expired when i return). Is this something that can even be done or am I just overthinking it and only have to worry about the status on what I am entering the country and not leaving. My H1-B and AP will be valid when I leave the country, but only the AP will be valid when I plan to reenter.

2) As I mentioned earlier, I plan to inform HR to switch me over from H1-B to EAD when H1-B expires and when I will be overseas. That should not matter right? Me telling them to switch me from H1-B to EAD while I am overseas?

[Spectator]

lozolneo,

Welcome to the forum.

My first question would be - is there a reason why the H1B is not going to be extended? I can think of some, but I thought I would ask e.g. you have reached the 6 year limit, but don't yourself have a basis to extend the H1B beyond 6 years.

1) When I depart the US in the middle of August- do I have depart in a certain status? I mean do I have to depart on H1-B or on AP? And does this even happen where they note on 'what status' you leave the country. In all these years, (of course i have been on H1-B only), I have never been asked what status I am leaving the country on.

The reason I ask is because the next time I will enter the country it will be after the expiration of my H-1B and on the AP and I am wondering if I have the leave the country on the same status on which I expect to enter? In my case, since I will be coming back to the country on AP in the future, do I have to leave on AP and not on the H1-B (which is valid when I leave but will have expired when i return). Is this something that can even be done or am I just overthinking it and only have to worry about the status on what I am entering the country and not leaving. My H1-B and AP will be valid when I leave the country, but only the AP will be valid when I plan to reenter.

Yes, you are over thinking it at bit

You do not have a choice. You would have last been admitted to the USA in H1B status.

You don't leave in a status - you give up whatever status you were in at the time you depart the USA.

You will not abandon your I-485 if, when you depart the USA, you fulfill one of the two conditions below:

a) You were in H or L status at the time you departed the USA.

b) You held a valid AP at the time you left the USA.

It appears you will fulfill both conditions.

Every time you return to the USA, you ask to enter, or be admitted, based on the documents you present to the IO. The fact that the last time you were admitted to the USA was in H1B status has no bearing on you asking to enter as a Parolee the next time you return.

2) As I mentioned earlier, I plan to inform HR to switch me over from H1-B to EAD when H1-B expires and when I will be overseas. That should not matter right? Me telling them to switch me from H1-B to EAD while I am overseas?

I'll defer to others, but I don't think it matters what the basis of your I-9 is when you are outside the USA. You don't need US Employment Authorization in that situation, but I don't think there is any harm in the switch being made while you are outside the USA.

Although it may be some time in the future, remember that you must be present in the USA when you apply for an AP renewal and that you must be present in the USA after it is approved for the new AP to be valid for use. You cannot have the AP sent to you abroad for use at a future date. The AP would not have been valid at the time you departed the USA otherwise.

[imdeng]

lozolneo - if you hold a valid AP then you can enter with that document - no problems. Using EAD and AP are not coupled with each other - you can use AP for entry and continue to be on H1B (although this would not be possible for you case since your H1B is expiring).

Couple of things to note:
1. It is generally advised to be on H1B until your AoS is approved. So if possible, do get your H1B extended.
2. AP generally triggers a second level inspection at the PoE - don't worry about it - it is completely routine.

Best of luck.

[lozolneo]

Thanks very much Spectator and imdeng.

The company doesn't seem too keen on extending the visa since I have EAD/AP and for the fact that i spend a really long time working out of our London office (although I still remain on US Payroll).

I understand that I won't abandon my I-485 when I leave if i fulfill the 2 conditions you mentioned. No problems.
I also understand that to renew my AP I need to be present on the day the application is made and the renewal AP cannot be sent to me abroad if it has been approved while I am overseas. Fully get that. Just want to run this below situation with putting some dates by you to see if in your expert opinion it makes sense and it valid.


Current EAD/AP valid till April 2015
Will depart US middle of August. At that time, will have valid H1-B as well as valid EAD/AP.

H1-B will expire in early september.

For argument sake, lets say the next time I re-enter the US will be January 2015.
At this time, I will be able to use the AP to enter right? And I would say yes, because when I last left the country (which would be August 2014), I had in my possession a valid AP.

Now in January 2015 while I am in the US, I apply for a renewal of EAD/AP. It is approved while I am overseas. Again I get it that I cannot have it sent to be overseas and use the new one to enter in the future. But I will still be able to use the current and existing AP that is valid till April 2015 right and enter before the current one expires right (lets assume this is in March 2015). I will then when i leave the next time will have the current AP valid till April 2015 and the renewal AP which would be valid when I leave the country and be able to use that AP to enter in the future?

Imdeng- I have heard that on AP you go for a secondary inspection. What do they ask? or is it just while they do some more checking? I just want to know if anything in my situation particularly (the fact that I am spending a great deal of time overseas- but that is no issue right? with AP i am able to travel during that period?).

Thanks very much again.

lozolneo,

Welcome to the forum.

My first question would be - is there a reason why the H1B is not going to be extended? I can think of some, but I thought I would ask e.g. you have reached the 6 year limit, but don't yourself have a basis to extend the H1B beyond 6 years.

Yes, you are over thinking it at bit

You do not have a choice. You would have last been admitted to the USA in H1B status.

You don't leave in a status - you give up whatever status you were in at the time you depart the USA.

You will not abandon your I-485 if, when you depart the USA, you fulfill one of the two conditions below:

a) You were in H or L status at the time you departed the USA.

b) You held a valid AP at the time you left the USA.

It appears you will fulfill both conditions.

Every time you return to the USA, you ask to enter, or be admitted, based on the documents you present to the IO. The fact that the last time you were admitted to the USA was in H1B status has no bearing on you asking to enter as a Parolee the next time you return.

I'll defer to others, but I don't think it matters what the basis of your I-9 is when you are outside the USA. You don't need US Employment Authorization in that situation, but I don't think there is any harm in the switch being made while you are outside the USA.

Although it may be some time in the future, remember that you must be present in the USA when you apply for an AP renewal and that you must be present in the USA after it is approved for the new AP to be valid for use. You cannot have the AP sent to you abroad for use at a future date. The AP would not have been valid at the time you departed the USA otherwise.

[Spectator]

Thanks very much Spectator and imdeng.

The company doesn't seem too keen on extending the visa since I have EAD/AP and for the fact that i spend a really long time working out of our London office (although I still remain on US Payroll).

I understand that I won't abandon my I-485 when I leave if i fulfill the 2 conditions you mentioned. No problems.
I also understand that to renew my AP I need to be present on the day the application is made and the renewal AP cannot be sent to me abroad if it has been approved while I am overseas. Fully get that. Just want to run this below situation with putting some dates by you to see if in your expert opinion it makes sense and it valid.


Current EAD/AP valid till April 2015
Will depart US middle of August. At that time, will have valid H1-B as well as valid EAD/AP.

H1-B will expire in early september.

For argument sake, lets say the next time I re-enter the US will be January 2015.
At this time, I will be able to use the AP to enter right? And I would say yes, because when I last left the country (which would be August 2014), I had in my possession a valid AP.

Now in January 2015 while I am in the US, I apply for a renewal of EAD/AP. It is approved while I am overseas. Again I get it that I cannot have it sent to be overseas and use the new one to enter in the future. But I will still be able to use the current and existing AP that is valid till April 2015 right and enter before the current one expires right (lets assume this is in March 2015). I will then when i leave the next time will have the current AP valid till April 2015 and the renewal AP which would be valid when I leave the country and be able to use that AP to enter in the future?

Imdeng- I have heard that on AP you go for a secondary inspection. What do they ask? or is it just while they do some more checking? I just want to know if anything in my situation particularly (the fact that I am spending a great deal of time overseas- but that is no issue right? with AP i am able to travel during that period?).

Thanks very much again.

lozolneo,

Yes, those scenarios are fine. USCIS has previously clarified that a pending AP application is not abandoned if the the person returns on a previous valid AP (or in H/L) status and that the AP is then valid for future use.

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.

[Kanmani]

Spec,

What if,

An AoS applicant on H1B , who has a valid visa stamp on the passport, just switched to EAD to work for another employer, wishes to resume H1B employment upon return using visa stamp, travels without AP ? Is the I-485 abandoned?

Do we need to be on H/L 'status' before departure to return on H1/L status?

[Spectator]

Spec,

What if,

An AoS applicant on H1B , who has a valid visa stamp on the passport, just switched to EAD to work for another employer, wishes to resume H1B employment upon return using visa stamp, travels without AP ? Is the I-485 abandoned?

Do we need to be on H/L 'status' before departure to return on H1/L status?

Kanmani,

If the person was not in H1B status (or had a valid AP) at the time they departed the USA, then they would abandon their AOS application.

In the situation you describe, the person would not be in H1B status, so they would need a valid AP at the time of departure, even though they intended to return in H1B status.

The relevant regulations are 8CFR 245.2(a)(4)(ii)(B) and (C).

(4) Effect of departure --


(i) General.

The effect of a departure from the United States is dependent upon the law under which the applicant is applying for adjustment.

(ii) Under section 245 of the Act.

(A) The departure from the United States of an applicant who is under exclusion, deportation, or removal proceedings shall be deemed an abandonment of the application constituting grounds for termination of the proceeding by reason of the departure. Except as provided in paragraph (a)(4)(ii)(B) and (C) of this section, the departure of an applicant who is not under exclusion, deportation, or removal proceedings shall be deemed an abandonment of the application constituting grounds for termination of any pending application for adjustment of status, unless the applicant was previously granted advance parole by the Service for such absences, and was inspected upon returning to the United States. If the adjustment application of an individual granted advance parole is subsequently denied the individual will be treated as an applicant for admission, and subject to the provisions of section 212 and 235 of the Act. (Paragraph (a)(4)(ii) revised effective 7/1/99; 64 FR 29208 )


(B) The travel outside of the United States by an applicant for adjustment who is not under exclusion, deportation, or removal proceedings shall not be deemed an abandonment of the application if he or she was previously granted advance parole by the Service for such absences, and was inspected and paroled upon returning to the United States. If the adjustment of status application of such individual is subsequently denied, he or she will be treated as an applicant for admission, and subject to the provisio ns of section 212 and 235 of the Act.


(C) The travel outside of the United States by an applicant for adjustment of status who is not under exclusion, deportation, or removal proceeding and who is in lawful H-1 or L-1 status shall not be deemed an abandonment of the application if, upon returning to this country, the alien remains eligible for H or L status, is coming to resume employment with the same employer for whom he or she had previously been authorized to work as an H-1 or L-1 nonimmigrant, and, is in possession of a valid H or L visa ( if required).

The travel outside of the United States by an applicant for adjustment of status who is not under exclusion, deportation, or removal proceeding and who is in lawful H-4 or L-2 status shall not be deemed an abandonment of the application if the spouse or parent of such alien through whom the H-4 or L-2 status was obtained is maintaining H-1 or L-1 status and the alien remains otherwise eligible for H-4 or L-2 status, and, the alien is in possession of a valid H-4 or L-2 visa (if required).

The travel outside of the United States by an applicant for adjustment of status, who is not under exclusion, deportation, or removal proceeding and who is in lawful K-3 or K-4 status shall not be deemed an abandonment of the application if, upon returning to this country, the alien is in possession of a valid K-3 or K-4 visa and remains eligible for K-3 or K-4 status. (Revised 11/1/07; 72 FR 61791 )

In a previous answer to AILA, USCIS emphasized this point (although it may not be immediately obvious to many people):

26. Travel and Applications for Advance Parole

AILA requests clarification on issues relating to travel and applications for Advance Parole. Specifically, please confirm:

a. That an H-1, H-4, L-1, L-2, K-3, K-4, V-1, V-2, or V-3 nonimmigrant that is in possession of a valid nonimmigrant visa for reentry into the U.S. need not be present in the United States when he or she files for an advance parole document.

b. Please also confirm that an individual whose current advance parole document is still valid when he or she files for a new advance parole document is not required to be present in the United States when that new application is filed.
Please see the attached Addendum V for an expanded discussion of this issue.

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.

You raise a very important question, because it is not the method of RETURN to the USA that triggers abandonment, but rather the person's situation when they DEPART the USA. I think it reinforces why it is a good idea to have a valid AP at all times, as insurance against the need to make emergency travel.

[Kanmani]

Spec,

We have no status at this moment triggered by AP usage, my husband holds a valid H1B approval and resumed the H1b employment after his return. I have no reason to think about the said 'status', in a circumstance of expired AP and an emergency travel to India. With our I-94s' printed as 'Parolee', Consulate/USCIS could easily track down our mistake at the time of stamping if not when we try to extend our H1b/H4.

This could be one of the reason for not allowing to use their visa stamp in place of AP, there have been a lot of complaints at the Port of entry, like, CBP have forcefully paroled us where we had the intention to use our non immigrant visa stamp.

Thank you for the detailed reply. That was of course a very important post of yours.

[Spectator]

Spec,

We have no status at this moment triggered by AP usage, my husband holds a valid H1B approval and resumed the H1b employment after his return. I have no reason to think about the said 'status', in a circumstance of expired AP and an emergency travel to India. With our I-94s' printed as 'Parolee', Consulate/USCIS could easily track down our mistake at the time of stamping if not when we try to extend our H1b/H4.

This could be one of the reason for not allowing to use their visa stamp in place of AP, there have been a lot of complaints at the Port of entry, like, CBP have forcefully paroled us where we had the intention to use our non immigrant visa stamp.

Thank you for the detailed reply. That was of course a very important post of yours.

That's not necessarily a problem.

a) As long as he has a valid AP when he departs the USA.

b) If his H1B is extended within the USA in the future, he would resume H1B status.

c) If having met the criteria on departure, he chooses to be admitted in H1B status upon return, by presenting a valid H1B visa and appropriate documentation.

As a side issue, you would also need AP to depart the USA, since you cannot be maintaining H4 status if the primary is not maintaining H1B status.

The Cronin memo allowed him to continue to use the H1B employment authorization component of his approved petition, rather than using EAD (as long as he returned using AP to resume employment with the H1B sponsor).

On a positive note, I have never seen a post on any forum describing a situation where USCIS have denied an I-485 for abandonment under these circumstances.

On a further side note, there has been much discussion about what can be achieved by Executive Action. Since this is by Regulation (I haven't checked what the INA says), it can be changed by USCIS rulemaking, in the same way as the H4-EAD is being changed. A small change to remove the requirement to actually be in H/L status (rather than just holding a valid petition) could be quite beneficial to many people.

[Kanmani]

That's not necessarily a problem.

a) As long as he has a valid AP when he departs the USA.

b) If his H1B is extended within the USA in the future, he would resume H1B status.

c) If having met the criteria on departure, he can chooses to be admitted in H1B status upon return, by presenting a valid H1B visa and appropriate documentation.

You are correct. I missed it.

[asankaran]

Hi all,

Quick question regarding I-131 filing. If we don't have middle name should we leave the column blank or type N/A. Last time I had some confusion for my daughter when I entered none and I would like to know if any one faced similar issues.

Thanks.

[karukon]

Should be left blank.