TheCynick

We are currently stuck in submission purgatory waiting for I-131/765/485 approval. My wife's father is undergoing treatment for cancer and we have (not unreasonably, I think) a desire to go and see him. Based on this we entered Service Requests to have our I-131s expedited.

I received a polite letter from TSC yesterday, informing me that The Nipper's request to Expedite was accepted, so I can only hope that mine and the wife's will follow suit shortly. But a thought occurred to me on what status we might have if we were to leave the country and be paroled back in using the AP docs, bearing in mind that we are currently in valid L status until 2012. - I just don't have a valid L sticker in my passport.

So the short question is - if I leave and re-enter using AP docs, am I still in L status on my return, or does that then fall away because I am not admitted as such, but rather paroled in. And if it does fall away does that then mean that I cant work because I wouldn't (perhaps) have EAD in hand at the time of being paroled in to the US?

TIA.

washsaint

If you are on a valid L visa you don't need the AP. You can freely come and go on the L visa: so you don't need to wait for AP.

augigi

He can't enter on L visa if he doesn't have one in his passport.

ian-mstm

In that case, he can still leave - but will need an appointment at a US Consulate to get the visa prior to his return.

Of course, this brings up another issue... that of I-485 abandonment if he leaves the US prior to receiving AP.

All that said, I suggest that his family is his priority and immigration be damned. He can always reapply for AOS.

Ian

crg

I don't know if this guidance has been superseded since it came out, but it seems to address your concern about working if you are paroled.

http://www.immigrationpage.com/asset.../legacyins.pdf

"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."

rew1000

I believe there's a concession similar to the one crg has highlighted which actually allows the holder of H/L status traveling under AP to be admitted with their H/L nonimmigrant status rather than as a parolee (even without a current visa sticker). I could be wrong though - might be worth getting advice from your immigration lawyer.

zerlesen

I think this is one of those areas where the CBP has extremely broad discretionary authority - whatever they write on the I-94, that's your status. I must say that I haven't heard of anyone being admitted in H/L status without having obtained an H/L visa and I'm not sure why, in the situation you describe, the agent wouldn't just admit him as a parolee.

The abandonment question is interesting. If he's in valid L status (but without AP approval) when he leaves the US then he's not abandoning the 485. Of course, once outside the US he no longer has any status whatsoever, regardless of what may be in his passport. The only (hopefully very minimal) risk is that if the embassy decides for some reason not to grant the new L visa, he can't get back to the 485. In that event, I think he would be *retroactively* deemed to have abandoned the 485. (A similarly unlikely thought experiment: if he had an H/L visa in his passport and the agent at the POE denied him entry anyway, the 485 would become moot... right?)

crg

They need the current visa sticker unless otherwise exempt (Canadians/Bermudians/Automatic Visa Revalidation etc).

In order to admitted as an H/L, the person must be in full compliance with the H/L requirements including documentary requirements. They are not any more visa exempt than any other H/L who isn't under adjustment.

ian-mstm

I'm guessing he renewed or changed his status, and hasn't yet left the US to get the actual visa. Happens all the time! The OP did mention something about not having a "valid L sticker".


AFAIK, once an I-485 is filed you can't leave the US without AP or the I-485 is deemed abandoned... regardless of any other status he might have. Of course, I could be wrong.

Ian

crg

An H1/L1 can depart and return as an H1/L1 without an AP and without abandoning the AOS as long as they are in full compliance.

meauxna

Isn't that the whole point of the 'dual intent allowed' provision assigned to H & L? They can travel without the AP but once they do that or work with EAD, they have to conform to the I-485 application. Seems I had the travel part wrong according to what crg posted.

zerlesen

Yep, and their dependents. In fact, you don't even have to present the I-797 from the AOS application any more when you re-enter.

(It should be noted that CBP personnel are not always up-to-date on the rules that they are supposed to be following, but if you present a valid visa at the border someone unaware of the rule presumably wouldn't even think to ask whether you're an AOS applicant...)

TheCynick

Thanks all for your considered comments.

Some further studying of the internets has indicated that being paroled back in to the USA while still being in valid H or L status allows the parolee to resume employment with the H or L sponsoring employer. The H or L status is only lost once the employee makes use of their EAD for employment, even if it is with the same employer under the same terms and position as under the H or L.

Thanks again.

sangiano

There seems to be some confusion about STATUS versus EMPLOYMENT AUTHORIZATION in this thread.

If the OP returns using AP, they will be a Parolee, which will be evidenced by the I-94 issued.

They will not be in H/L status as appropriate.

The Cronin Memo,, part of which was referenced earlier, allows a person who held H/L status at the time they departed to continue to use the Employment Authorization element of their H/L approval if they return and resume employment with the sponsoring Employer. They are therefore not obliged to use their EAD for Employment Authorization.

The person can regain their H/L status be either departing the US and being readmitted using a valid H/L visa, or if an extension/amendment is granted which has an attached I-94.

This then overrides the I-94 granted through the AP entry and the person resumes H/L status.

This article gives a good overview http://www.murthy.com/news/n_efftrv.html