As a general rule, an alien who has filed for Adjustment of Status in the US must apply for Advance Parole and use the Advance Parole to come back to the US in order to keep his / her Adjustment of Status application. Conversely, travels without Advanced Parole will cause USCIS to consider the pending Adjustment of Status application to be abandoned even if the alien comes back to the US on a valid visa. H-1 and L-1 holders are the only exceptions to this rule. H-1 holders will be discussed here.
Unlike other visa types, the aliens in H-1B status who have a pending Adjustment of Status application do not need to apply for Advance Parole to go abroad if they fulfill certain conditions. As long as the H-1 B visa holder maintains his/her H-1 B status before leaving the U.S., he/she may apply for an H-1B visa to re-enter the U.S. to work for his / her H-1B sponsoring employer after his/her travel abroad. When he/she comes back with a valid H-1B visa to work for his/her H-1B sponsoring employer, he/she is not considered to be in parolee status, but rather still under H 1B status, and his/her I-485 (AOS) application is preserved. Furthermore, an H-1B holder does not need an EAD to work (for his/her H-1B employer), and is still eligible to apply for an extension of H-1B status or H-1B transfer.
There is also an exception for the eligibility of change parolee status back to H-1B status if certain conditions are met. If an alien is in H-1B status before the travel and reenters US with advance parole and resumes work for the same H-1B employer, he/she may resume H1-B status by an H-1B extension petition or an H-1B transfer petition. Also, upon return and resume work for the same H-1B employer, though in parolee status, his H-1B employment authorization remain valid for the approved period.
Example 1:
Tony is a valid H-1B visa holder and is going abroad to India. He does not apply for Advance Parole. He wants to return to the US and applies for an H-1B visa again and it is approved. He now is able to re-enter the US. If he returns to work for his H-1B sponsoring employer, his I-485 is preserved and he keeps his H-1B status.
If Tony failes to obtain H-1B vsia and he has to use the Advance Parole for entering the US after his trip, he will be grated a parolee status at the port of entry. If Tony continues to work for his H-1B employer, his H-1B employment authorization reamins valid for the period as shown in the approval notice and he does not need an EAD to work. If Tony files H-1B extension or H-1B tranfer (through employer's sponosrhip) before the expiration of his H-1B approved period, USCIS will grant him H-1B status upon approval of H-1B petition. By this may, Tony will resume H-1B status.
Example 2:
Bill is in a valid H-1B status and goes abroad to Korea. He applies for an Advance Parole before going abroad and receives his Advance Parole. He applies for an H-1B visa in Korean to come back to the US. However, he is unable to get the H-1B visa. He could re-enter the US by using his Advance Parole, return to work for his previous employer. His H-1B employment authorization remains valid for the approved period and he does not need an EAD. However, he is in a parolee status. Later on, Bill started working for a new employer by using EAD and his new employer does not file H-1B transfer for him. Bill will never be able to change back to H-1B status as he is no longer qualify for the exception rule.
For more information on Advance Parole, please
click on the following links:
What is Advance Parole?
What are the benefits of Advance Parole?
Who is eligible for Advance Parole?
What documents and information are needed for applying an Advance Parole?
What is the difference between an Advance Parole and a Re-entry Permit?
H-1 B Visa and Advanced Parole
Frequently asked questions about Advance Parole
Attorney's fee and filing fee
Advance Parole Issue in Latest Z&A Memo
Memo: Be Aware of Abandonment of COS and AOS Applications
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