What is the issue?
Can an alien maintain her H-1b nonimmigrant status after she uses advance parole that is based on her pending I-485 application to enter US?
Why is the issue important?
If she cannot maintain the H-1b status, or she can only resume her H-1b status after she files H1-b extension or transfer petition, she would be out of status immediately upon the denial of her I-485 application, assuming that the denial comes before she files the H-1b extension/transfer to the USCIS.
What Murthy Law Firm said?
The alien cannot maintain her H-1b status after using AP, or at least before she file H-1b extension/transfer. She will be out of status upon the denial of I-485. (Effect of Travel While in H1B / L-1 Status and Pending I-485 Posted Mar 21, 2008 http://www.murthy.com/news/n_efftrv.html )
What Mr. Stanley Mailman said?
“…The question you ask, I think is this: although the person in question, permitted ingress on the AP document, may revert to the nonimmigrant status (provided the petition is still valid), what is her actual status until she takes a stance? If she is returning to her H-1B or L-1 job she can claim her nonimmigrant status by appropriate entry on the I-9 with a copy of the parole document and a copy of the memorandum. That should be followed by an application for extension. If she seeking another job she would consider herself a parolee and seek employment authorization or renewal of the EAD.” ( http://web.wenxuecity.com/BBSView.php?SubID=immigration&MsgID=456834)
“An individual who had the option of being admitted in H-1B or L-1 status may still continue to hold her nonimmigrant status even if she chose to be paroled (assuming she had not violated status), and she may seek an extension of that status, provided her nonimmigrant petition is still valid.” (Immigration Law and Procedure, 51.06[2][c])
Who is Stanley Mailman?
http://www.ssbb.com/mailman.html
What is the current policy of USCIS on this issue?
“Under 8 CFR 245.2a(4)(ii)(C) , H-1/H-4 or L-1/L-2 nonimmigrant adjustment of status applicants who are not in exclusion, deportation, or removal proceedings are not required to seek advance parol e to travel abroad. They may be readmitted to the United States in the same status they maintained at the time of their departure, provided that they are able to demonstrate to the immigration officer at a port of entry that they:
• remain eligible for H-1/H-4 or L-1/L-2 classification,
• are in possession of a valid H-1/H-4 or L-1/L-2 nonimmigrant visa (if a visa is required), and
• are coming to resume employment with the same employer for whom they had been authorized to work as an H-1 or L-1 nonimmigrant (or, in the case of dependents, the spouse or parent through whom they received their H-4 or L-2 status is maintaining his or her H-1 or L-1 status).
If there has been a recent change of employer or extension of stay, the applicant, in order to comply with the third requirement noted above, must have evidence of an approved I-129 petition in the form of a notation on the nonimmigrant visa indicating the petition number and the employer’s name, or a notice of action, Form I-797, indicating approval.” (Adjudicator\'s Field Manual, 23.2(e))
Understanding Mr. Mailman’s interpretation
Before the alien enters US, she has the choices of using AP or valid H-1b visa. If she chooses H-1b visa, she can be readmitted as an H-1b worker at the time of entry, provided that she 1) is eligible for H1b (petition is still valid); 2) is holding a valid visa; and 3) returning to the former H1b employer (if still relying on the old H-1b petition).
If she chooses to use AP, she will be paroled to enter US. According to Mr. Mailman, even if she did so, she can still claim her nonimmigrant H-1b status by 1) returning to the former H-1b employer (the petition is still valid and she relies on that); 2) “by appropriate entry of I-9 form”; and 3) showing the employer copies of the parole document and the May 16 2000 memo.
In Mr. Mailman’s interpretation, the key to maintain H-1b status is NOT a filling of new I-9 form, BUT keeping her H-1b job (H-1b petition is valid and the alien is actually holding the job). Mr. Mailman emphasized this in his book by saying “assuming she had not violated status” and “provided her nonimmigrant petition is still valid”. Someone twisted Mr. Mailman’s interpretation by distracting readers to form I-9. It is another example that this person is either intentionally misleading readers, or has difficulties in reading English.
If Murthy is right, the consequences would be weird
(1) An alien can be in H-1b nonimmigrant status for up to 6 years (if no after-six-year extension is sought). If the alien uses AP and is not in H-1b nonimmigrant status anymore (before she files extension/transfer), is the alien able to recapture the H-1b time between her entry and the approval of H-1b extension/transfer petition later?
(2) If, during the time between the entry and the approval of H-1b extension, the alien cannot maintain H-1b status, then USCIS would break the general rule that for nonimmigrant status extension, the alien must be in that VALID NONIMMIGRANT STATUS.
(3) If, during the time between the entry and the approval of H-1b extension, the alien cannot maintain H-1b status, USCIS would totally destroy the benefit of “dual intent rule” for that period even if the alien is ACTUALLY working as an H-1b worker. The “dual intent rule” is provided by statute/Congress and Congress has never passed a law about advance parole, which was developed by USCIS through regulations and memos. By destroying the benefit of the rule, USCIS would have trumped Congress on this issue, just like a son killing his parents.
(4) In practice, a lot of H-1b workers choose to use AP to take the benefit of not applying a new H-1b visa; and they are doing so based on their lawyers’ opinions that they have no worry about their H-1b status. AP would not be so popular if they know that using it will bear the risk of being out of status immediately if their I-485s are denied. Being out of status and forced to leave this country is the harshest consequence upon the denial of I-485 without the protection by H/L status. All H-1b workers trying to make the choice between H-1b visa and AP are facing this risk. This risk is so obvious to both aliens and USCIS. Does the fact that USCIS is silent on this risk mean that the “risk” itself does not exist at all?
(5) Some lawyers tend to read the law very conservatively. Most of these lawyers happen to be those who immigrated to this country themselves many years ago, such as Murthy and some Chinese lawyers. Reading law conservatively has the benefit of avoiding most risks. But being over-conservative can dump the good among the bad, especially when the provision itself is not very clear. If you are not confident on this issue, it is better to listen to what American lawyers or veteran scholars have said.
