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Immigration Issues/Converting From Parolee to H-1B Status

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QUESTION: Hello,

Thank you for your time!

Currently on H1-B (11th year), I-485 pending since Feb 2012, EAD/AP expires in March 2015, but never used it and have recently applied for renewal. Current H1-B was extended in July 2014 and expires in
Sept 2017. My H1-B visa expired in Sep 2010.

As far as I know, if I travel to India in June 2015 and return using AP:
a) My status will be parolee.
b) Even though I am a parolee, I will still be able to use H1-B for the remainder of the authorization period (until Sept 2017) as I am returning to the same employer.
c) Since I do not foresee any material changes in my job as was described in my recent renewal petition in July 2014 for the next three years, the only way for my status to revert back to H1-B is for me to visit India and return with a new H1-B visa.

I wish to remain in H1-B until my I-485 is approved and not use my EAD, but will continue to renew EAD/AP as a back-up.

Question:
Upon my return from India (using AP and not renewing H1-B visa) in August 2015,is it still possible for my employer to file an amendment requesting to convert my status from parolee to H1-B absent any material changes to my job?

Thank you!

ANSWER: Hi,

As a practical matter, your employer will be able to file an H1B petition in the future requesting extension of status (prior to I-94 expiration date of Sep. 2017) even if you enter as a parolee since you are otherwise maintaining H1B status. Be certain that you are employed only by the H1B employer and do not used your EAD card to work elsewhere.

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

QUESTION: Hello,

Thanks for the reply!

Sorry if I was not clear. Since my current H1-B expires in Sept 2017, any I-129 amended petition filed in Aug 2015 (upon my return from India using AP) that requests a conversion from Parolee to H1-B would not be a H1-B extension petition. It would be petition that requests my status to convert back to H1-B from Parolee for the period of August 2015 to Sept 2017. I want this for the sake of safety in case my I-485 is denied.

Hence, is it possible to file an I-129 amended petition requesting just a conversion from "Parolee to H1-B" absent any material change to the job and when this petition is filed in August 2015, which would be more than two years before the existing H1-B expiration in Sept 2017?

As per your previous reply, I will ensure that I will not be employed by any other employer using EAD.

Thank you!

Answer
Hi,

Yes, an amended H1B petition can be filed, and you are correct that the period of validity requested cannot exceed Sep. 2017. However, I recommend that the reason for amendment be for a change (no matter how minor or inconsequential) in job duties/responsibilities rather than the reason that you stated (parolee to H1B status). An amended H1B petition is not required unless the change is "material" but the USCIS will not reject or deny an amended H1B petition filed on the basis of a less than material change in job duties/responsibilities. Related information is here: http://www.h1b1.com/practices/amended-h-1b-petitions/

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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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