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 visa 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-1B visa holder maintains his/her H-1B status before leaving the United States, the alien 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 the alien 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 Employment Authorization Document (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 that allows an alien to change status from parolee, back to H-1B status, if certain conditions are met. If an alien is in H-1B status before traveling abroad and re-enters the United States with an advance parole document and resumes work for the same H-1B employer, he/she may resume their H-1B status by applying for an H-1B extension petition or an H-1B transfer petition. Also, upon return and resume of work for the same H-1B employer, though in parolee status, the alien’s H-1B employment authorization will remain valid for the approved period.
Tony is a valid H-1B visa holder and is going abroad to India; however, he does not apply for an Advance Parole document. He wants to return to the U.S.; therefore, he applies for an H-1B visa again and it is approved. He now is able to re-enter the U.S. If he returns to work for his H-1B sponsoring employer, his I-485 will be preserved and he will keep his H-1B status.
If Tony fails to obtain an H-1B visa and he has to use the Advance Parole document for entering the U.S. after his trip, he will be granted parolee status at the port of entry. If Tony continues to work for his H-1B employer, his H-1B employment authorization will remain valid for the period as shown on the approval notice and he will not need an EAD to work. If Tony files an H-1B extension petition or H-1B transfer petition (through employer's sponsorship) before the expiration of his H-1B approved period, the USCIS will grant him H-1B status upon approval of the H-1B petition. Through this method, Tony will resume H-1B status.
Bill is in valid H-1B status and travels 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 Korea to come back to the United States. However, he is unable to get the H-1B visa. He could re-enter the US by using his Advance Parole and 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.
After 90 days, Bill starts working for a new employer by using an EAD. His new employer, however, does not file an H-1B transfer for him. As a result, Bill will never be able to change back to H-1B status since he is no longer qualified for the exception rule.
(Updated 10/11/2012 by AD)
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