gecko123

Hi all,

I've been a silent reader on this forum for a while but now have a question that requires your expertise and opinion.

I'm currently in the US in H1b status. I am saying status because I used to be an F1 student and recently did a change of status to the H1b work visa - I don't have an H1b stamp in my passport. My US citizen partner and I plan on getting married in the very near future. I am going to take him to Europe later in the fall to visit friends and family. I know that I need to get an H1b stamp from the embassy so I can come back to the US.
My question is - would it make sense to get married before we leave the US? It takes three months to get the advance parole document, which would be just in time for our booked flights. However, I am wondering if this wouldn't make things more complicated since I have a perfectly fine H1b petition? Would it make more sense to just get the H1b at the embassy and marry when we come back? Or start the adjustment of status process before we even leave the US? My concern is that there could be a delay in issuing my visa (have read horror stories about administrative processing etc.). But then again if there are delays in getting the Advance Parole that would jeopardize the trip as well. What do you guys think is the better solution?

S Folinsky

General rule: there is a statutory provision which essentially provides that there is not conflict between having an H-1b status or visa and being the beneficiary of a family based visa petition.

augigi

So if AOS were pending and she was still waiting on the AP, could she travel and reenter on her H1b visa without abandoning the AOS?

crg

An H1B doesn't need an advance parole to reenter and the AOS is not abandoned as long as the person has the proper H1B documents and is otherwise admissible as an H1B such as still employed in the same capacity with the petitioner and has a valid passport/visa etc. They can even have an EAD card as long as they aren't using it.

jxv73

The consensus wisdom on the internet is to keep your H1B going until you have the green card.

I disagree with the consensus wisdom, mainly because I went through 5 H1B visa renewals (my past employer only sponsored 1 year petitions) and I can say that I would do anything in my power to avoid the inside of a US consulate.

If the AP/EAD is not ready the OP will have to go to the consulate to get the new H1B but the AOS stays "alive".

S Folinsky

This is true for an H-1b with a visa. OP doesn't have a visa.

crg

I agree and was aware. The OP acknowledged that he needed a new visa foil to reenter in his first post so I glossed over it with "as long as the person has the proper H1B documents". Either way, it's good to make sure it is clear to everyone that an H1B visa foil is required if the person opts to travel without the AP when the AOS is pending. So thanks for the emphasis.

gecko123

Thanks everyone, this has been helpful.

Is the consensus wisdom to keep the H1b going because it would work like a safety net in case the AOS fails (for whatever reasons...)? Can you explain why you would do anything to avoid the inside of a US consulate? It looks like H1b gets a lot of scrutiny and while I understand that there's always a risk when traveling, I'm a little worried that I get stuck abroad because the consulate takes a long time to issue the visa.
Hypothetical scenario: if AP gets approved while we're abroad, can I have someone mail it to me and I return with it to the US?

Noorah101

ONLY if the validity date on the AP begins prior to the date you left the USA. If it's after, you cannot return using AP.

Rene

jxv73

Yes

I'd spend a good 6-8 hours inside the consulate just waiting for the interview and the visa always seemed to take longer.

No

crg

I received some karma from augigi with this comment:

"Awesome, thank you! I am in valid E3 status and waiting on AOS, EAD and AP.. not sure I'll have it before I need to travel but that is great if I can reenter on my E3."

Please be aware that an H1B and L1 (and dependents) can often travel without a parole letter while under AOS.

An E3 cannot do the same. The AOS may be considered abandoned and reentry could be barred without the parole letter. Some H/L enjoy the benefit of dual intent. An E3 does not.

augigi

Hmmm.. important difference. The E3 is not "NOT" dual intent right? Where is this information you have given about abandoning the AOS sourced from please? Thanks.

retzie

It's more that those categories are exceptions, as listed in 1.A on p.10 of the I-485 instructions:

jxv73

8 CFR 245.2 (a)(4)

H-1, L-1, H-4 (when a dependent of an H-1), L-2, K-3, K-4; V; Cuban Adjustment (---this last one came as a surprise)

retzie

^ Let me guess: you also read that 7,000 times before leaving on an H-1B while your AOS was in process