Immigration Issues/Parolee to H1B

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QUESTION: Hello,

Thank you for your time!

Currently on H1-B (10th year), I-485 pending for 20 months, EAD/AP expires in March 2015, but never used it. Current H1-B expires in Sept 2014.

If I travel to India in July 2014 after extending my H1-B but do not apply for a new H1-B visa (current one is expired) and use AP at port of entry, my status will be parolee. In this scenario, I am wondering about the ways in which I revert my status back to H1-B as I do not wish to use EAD and keep H1-B as a back-up.

I can think of two options:
a) H1-B Extension - ruled out as it has already been done prior to my India trip.

b) Return with H1-B visa instead of AP: I would prefer to avoid applying for a visa due to delays/denials.

Is there a third option where my employer can apply for an H1-B amendment upon my return on AP that would convert my status from parolee to H1-B? I would be grateful if you can let me know of any other options.

Thank you!

ANSWER: Hi,

If you travel when an H1B petition is pending with the USCIS, it will be approved but you will not be granted extension of status.

My recommendation is this: do not file an H1B petition until you return from your trip to India using existing unexpired H1B visa stamp. Be sure that the H1B petition requesting extension of your status is filed with the USCIS no later than its expiration date of Sep. 2014. When the H1B petition is approved, you will have received extension of H1B status in this scenario.

---------- FOLLOW-UP ----------

QUESTION: Hello,

Thank you for the reply!

Just one clarification:
My existing H1-B visa expired in Sept 2010 (my last visit to India was in August 2009). In that event, would you say the only option I have to keep my H1-B intact is to get my H1-B extension approval before I leave for India in July 2014 (premium processing), visit India and get my H1-B visa stamped and return to US?

I ask this because if I were to not got for my H1-B visa in India, I would have to use my  AP at the port of entry. That will make me a parolee, which will negate my H1-B status. I have read online at a lawyer's blog that there is no way an employer can file an amendment to change my parolee status to H1-B unless there is a change in my job conditions (duties/salary).

So, unless my job role with my current employer changes or if I change my employer, I will be stuck in a parolee status. Is this an accurate picture?

Thank you!

Answer
Since you do not have an existing unexpired H1B visa stamp in passport, your plan is sound, except that even if you do not apply for a visa stamp at the Consulate, and therefore enter as a parolee, you will still be able to extend or transfer H1B status in the U.S. in the future. Entering as a parolee does not void H1B status since you will continue to otherwise maintain H1B status.

And yes, after entering as a parolee your employer can file an amended H1B petition for you on the basis of a material change in job duties or location or other material change.

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Ajay K. Arora

Expertise

I can answer your questions on employment and family-based U.S. Immigration Law. Expertise in various immigration categories includes the following: H-1B, L-1, O-1, PERM (labor certification), EB-1 to EB-3 I-140 employment-based immigrant petitions, family or fiance(e) or spousal sponsorship, visa extension or change of status, adjustment of status, naturalization (citizenship), etc.

Experience

Ajay K. Arora attended Pennsylvania State University and the University of Wales at Swansea (United Kingdom), and earned his law degree at Temple University School of Law, Philadelphia, in 1993. Mr. Arora has practiced Immigration Law since graduation and is a member of the American Immigration Lawyers Association since 1995.

Organizations
American Immigration Lawyers Association (AILA) full member since 1995.

Education/Credentials
Ajay K. Arora attended Pennsylvania State University and the University of Wales at Swansea (United Kingdom), and earned his law degree at Temple University School of Law, Philadelphia, in 1993. Mr. Arora has practiced Immigration Law since graduation and is a member of the American Immigration Lawyers Association since 1995.

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