Paroled into US. SHould H1B amendment be filed?

[arzhan]

I re-entered US in Nov 2008 using my Parole. The new I-94 end date was driven by the travel document end date which is Nov 2009. I continued working on H1B as my H1B is valid until 2010.

My QUestion: Should I file an amendment to have my I-94 extended until my H1B end date which is 2010? My company's attorney quoted the following and said that I can continue to work until 2010 IRRESPECTIVE of my I-94 end date based on the following memorandem. What are your thoughts and experiences? Thanks for any correct feedback :)

************************************************** **************
Legacy INS Dual Intent Memo (May 16, 2000)
H/Ls Who Work After Entering on Advance Parole

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.
************************************************** **************

[rajuseattle]

arzhan,

I received the similar response from my attorney. Per them H1B is dual intent visa, and so long as u r working for the same employer u will be in H1B status and no need to file any amendment.

[arzhan]

Thanks Raju.

So does that mean that even though the I-94 expires earlier, we can continue working until H1B expires?

If I want to transfer my H1B inbetween to another employer, they require a valid I-94 for
H1B transfer process to be initiated. In my case it will be a problem then. I'm just trying to cover all possible angles.

Thoughts?

[arzhan]

anyone?

[TomPlate]

Assume you do not apply for a green card.

You moved from company A to company B before I94 expires.
Now your I94 is expired but you have your H1B - i797 valid.
You can move to Company C doing an H1 transfer.

From the above they do not require a vali I94 but a valid I797.

So it is independent of the Green card AP.

[ssdtm]

My QUestion: Should I file an amendment to have my I-94 extended until my H1B end date which is 2010?

No need to file H1 amendment. Your H1 will remain valid to the date it was.
This is per consultation from a top attorney.

[fcres]

I re-entered US in Nov 2008 using my Parole. The new I-94 end date was driven by the travel document end date which is Nov 2009.

So I-94 date is dependent on AP expiry date? I was under the impression the I-94 date will be 1 year from the date you entered.

I have AP valid until July 2009. Planning to go to India for a month and come back by mid June. So what will be the expiry date on my I94?

[vin13]

So I-94 date is dependent on AP expiry date? I was under the impression the I-94 date will be 1 year from the date you entered.

I have AP valid until July 2009. Planning to go to India for a month and come back by mid June. So what will be the expiry date on my I94?


If you come back in mid june, the i-94 may be given for a year.

But that does not mean that you will be able to go to India and come back again in say August. Because even though I-94 would have a later date, your AP document has expired.

For example, lets say i am on H1-B. My visa is upto 2010. I quit the company. My i-94 says 2010. I am no longer on H1-B even though my I-94 is for a later date.

[desi3933]

So I-94 date is dependent on AP expiry date? I was under the impression the I-94 date will be 1 year from the date you entered.

I have AP valid until July 2009. Planning to go to India for a month and come back by mid June. So what will be the expiry date on my I94?

>> So I-94 date is dependent on AP expiry date?
No. I-94 date refer to validity period for visa status during US stay. In case of AP, it is customary to issue I-94 for one year, but it does not mean much as person has valid status due to AOS Pending.


____________________
Not a legal advice.

[NolaIndian32]

When you entered the country your status was set as "Parolee". You can continue to work on your H1b since you have a valid work authorization document. When you apply to extend your H1b (if you don't get your green card by then) and your H1b extension is approved you will be back on H1B status.

I really don't know what the hoopla is about the I-94; I haven't left this country since Nov 2002. I have been been in the US since Aug 1994 and have traveled several times back and forth prior to 2002; never did have a problem with the I-94 during those trips (guess i need to ask my atty too!)

[babu123]

My Wife has similar situation as you. We came back to US in Dec 2008 using AP. Her H1B is valid upto Jan 2011. However she got I-94 issued valid upto Dec 2009.
I checked with famous attorney and he said the following 3 options:

1. Apply EAD and convert to 485 Pending status after Dec 2009.

2. Apply for new H1B extension by Dec 2009 as her I-94 expires by Dec 2009.

3. Go to adjacent country and get her visa stamp using her H1B and enter US using H1B visa. In that case her H1B is valid upto Jan 2011 and I-94 will be issued until Jan 2011.

Hope this helps

[desi3933]

My Wife has similar situation as you. We came back to US in Dec 2008 using AP. Her H1B is valid upto Jan 2011. However she got I-94 issued valid upto Dec 2009.
I checked with famous attorney and he said the following 3 options:

1. Apply EAD and convert to 485 Pending status after Dec 2009.

2. Apply for new H1B extension by Dec 2009 as her I-94 expires by Dec 2009.

3. Go to adjacent country and get her visa stamp using her H1B and enter US using H1B visa. In that case her H1B is valid upto Jan 2011 and I-94 will be issued until Jan 2011.

Hope this helps

Does she has any H-1B visa stamp? What is the expiration date on that visa?

Why did she use AP instead of H1 visa to enter?

AP entry is not same as entry on H/L visa status.

[arzhan]

I re-entered US in Nov 2008 using my Parole. The new I-94 end date was driven by the travel document end date which is Nov 2009. I continued working on H1B as my H1B is valid until 2010.

My QUestion: Should I file an amendment to have my I-94 extended until my H1B end date which is 2010? My company's attorney quoted the following and said that I can continue to work until 2010 IRRESPECTIVE of my I-94 end date based on the following memorandem. What are your thoughts and experiences? Thanks for any correct feedback :)

************************************************** **************
Legacy INS Dual Intent Memo (May 16, 2000)
H/Ls Who Work After Entering on Advance Parole

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.
************************************************** **************

Ok, so reading all your posts I've come to the following conclusion. Since my I-797 is valid until 2010 (even though the I-94 expires in Nov 09) I can continue working without filing any extension. My company would not file any extension as it is additional money for them. And even if they do, it will again become void if I travel out and come back.

So in a nutshell it makes more sense for me to get out and have a visa stamped.

I just wonder why aren't the rules governing I-94 or EAD made more public so we can readily refer to them. Isn't that a legal right? I can google and see what rentor's rights are but none on this. Strange.

Thanks for all you inputs friends!

[unitednations]

My Wife has similar situation as you. We came back to US in Dec 2008 using AP. Her H1B is valid upto Jan 2011. However she got I-94 issued valid upto Dec 2009.
I checked with famous attorney and he said the following 3 options:

1. Apply EAD and convert to 485 Pending status after Dec 2009.

2. Apply for new H1B extension by Dec 2009 as her I-94 expires by Dec 2009.

3. Go to adjacent country and get her visa stamp using her H1B and enter US using H1B visa. In that case her H1B is valid upto Jan 2011 and I-94 will be issued until Jan 2011.

Hope this helps

Famouse attorney is incorrect with regards to #1. Memo is clear and USCIS has clarified through AILA liaison minutes that the I-94 card expiry on advance parole doesn't mean anything.

USCIS mail room would reject h-1b filing in #2 scenario. Reason being that in the I-129; it asks what immigration status person is currently on. If person puts AOS (THAT is not non immigrant status) and puts expiry date of white I-94 card then you are declaring that you are not in non immigrant status.

If you put your current status as h-1b; even though you entered on AP but the I-797 for h-1b has validity date until 2011 and put expiry date of 2011 then mail room would reject it stating that you filed the extension too early.

#3 is very tricky. legally it should work. However, I don't know of one situation where it has actually worked. There is a disconnect between CBP (border officers) and USCIS benefits people. Of the thousands of people who enter on advance parole; most of them were on visa statuses which were not dual intent; therefore, if they have used advance parole in the past; the CBP officer will not allow them in their non immigrant visa. It seems that many of the CBP officers do not realize that H-1b is dual intent and a person can enter on H-1b if they have a valid visa even though they may have entered in the past on advance parole. You could try and try to talk them into it but they think they are doing you a favor by now allowing you in h- visa if you entered on advance parole because they think USCIS will eventually deny your 485 if you do so.

The first time I saw this happened about four years ago. A couple of people I know (indpendent cases) let their H-1b's lapse and 140 wasn't approved and they had entered on advance parole in the past. The 140 looked like it was in trouble and while preparing the RFE response, they filed h-1b (had to go consular route because they let it lapse); got the h-1b approved and went for visa stamping. When they tried to re-enter at the port of entry on h-1b; CBP officer saw advance parole stamp and wouldn't allow them to re-enter on h-1b. Person a week later then attempted another re-entry from a Canadian border point. That border also didn't allow him to enter on h-1b for same reason. Eventually, the 140 got approved so getting back onto h-1b was a moot point.

Most recent example was this:

Person is on H-4 going to school. She filed I-485 as dependent has EAD. Graudates from school and gets job offer with Deloitte starting in September 2008. Deloitte had filed her H-1b through quota in April 2008. She got h-1b approved with I-94 card effective October 1, 2008. Since, they wanted her to start in September 2008; she would have to use EAD in September.

Her husbands 140 wasn't approved and she decides to go on one last vacation to India prior to starting her career. She goes to India in June 2008 and gets H-1b visa stamping done in July 2008 and visa states person cannot enter on H-1b until 10 days before effective date of h-1b. However, she has to come back in September 2008 to work with Deloitte. She enters in August 2008 on advance parole and starts to work with Deloitte on EAD.

Now; they renew the EAD late and 140 still isn't approved. Deloitte tells her that she doesn't have work authorization. She confers with the immigration attornies and asks them what to do. She asks them if they can amend the h-1b petition and ask for I-94 card. However, they do not know how to do this (sometimes it sucks to use the big immigration forms becuase they usually only know how to do straight cases). They along with me, tell her that since she has h-1b visa, she just needs to go outside the country and re-enter and get h-1b I-94 card at the border. She goes to Montreal, spends one day there. When re-entering she shows h-1b approval notice along with visa. However, CBP officer sees advance parole stamp and will not allow her in on H-1b. She comes back to USA and is dejected and still can't work because no H-1b and no EAD card yet.

She asks what to do? She is told to go back to another border crossing the following week. This time she takes the Cronin memo about h and advance parole. She was at the border crossing for five hours; showing the memo; discussing that it is upto her of what status she wants to enter on USA and if she wants to come back on H-1b even though she entered on advance parole that they have to allow that. Everything, she told (she was coached on it pretty good) was all legal. However, they look at the cronin memo and state that it only covers the scenario of person changing from advance parole to H while in USA.

Eventually; they put her into deferred inspection (take all of her immigration documents and tell her that she will get a call from a local office to get interviewed). She still cannot work because no EAD.

It took local office in New Jersey six weeks to call her. In the mean time, her EAD gets approved and she goes back to work with Deloitte. She finally gets the call from the local office and when she gets there; they tell her they checked with headquarters and that she was correct that they should have allowed her in on H-1b even though she had entered on advance parole in the past. They give her a new I-94 card on h-1b and all is good (her husband eventually get the 140 approved anyways).

There is enough instances at the border that if a person has entered on advance parole that they will not allow them back in on H visa. If you are going to try to do this then be prepared to go through the route in the last paragraph (it was not an isolated scenario; she is the only one I know of who took it all the way. The others just gave up and came in on advance parole.