Many people who have filed for adjustment of status want or need to maintain H1B status while their AOS application is being processed. In some cases, when they go abroad to apply for a new H1B visa, they encounter difficulties and ask if they can return to the United States using their advance parole.
Anyone who has filed for adjustment of status should also apply for advance parole. Failure to do so is almost criminal stupidity. The law provides that if an adjustment of status applicant goes abroad without first obtaining advance parole, their AOS application is deemed automatically abandoned by law. The law also provides that if the AOS applicant holds an H1B, H4, L1, or L2 visa, they may go abroad and return without advance parole.
The problem, of course, is that if you only have an H or L nonimmigrant visa, and do not have advance parole, if anything goes wrong with your nonimmigrant visa, your adjustment of status application will likely go up in smoke. This is particularly true when the AOS applicant needs to apply for a new visa while abroad. Applicants should never assume that a visa will be issued and should only travel with advance parole in hand.
If an AOS applicant returns to the US and uses advance parole to enter, then he or she will enter as a parolee. There is a split of opinion as to whether such a person may use a prior H1B authorization as lawful employment authorization, or must have a valid EAD in order to work.
The USCIS has offered different opinions on this subject. They have said, explicitly, that a returning parolee must not work unless he or she had a valid EAD. They have also said, at other times that a returning parolee may work if he or she has an unexpired H1B petition approval. These are both the product of informal commentary and do not carry the weight of law. In other words, you rely on these comments at your peril – if they change policy and apply the change retroactively, you have no recourse.
The regulations provide that when a nonimmigrant departs from the United States, their nonimmigrant status expires immediately and automatically. Advance parole is not one of the listed categories found in 8 CFR 274A showing employment authorization incidental to status.
It may be that the CIS will temporarily permit someone to resume work as a parolee using a previously approved H approval, but that has not been incorporated into the regulations and the CIS has the authority to retroactively change their minds on this subject. We recommend that all AOS applicants obtain and maintain both advance parole and EAD. If you want to maintain H1B status, you may do so. The advance parole and EAD are your safety net in case something goes wrong with your H1B.
Courtesy – Global Immigration Partners, Inc.
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