Entering the USA using H-1B or Parole?!?!

[JackDp 1]

Hi!

I have H-1B visa that expires on 25 Sept 09. I got married and applied for Green Card this July and already got the appointment date for biometrics.

This 04 Sept my mom is going to be 50 years old and she lives in Europe. Me and my wife are going to visit her to celebrate this her anniversary.

The question is....If we will leave USA in early Sept and be back till my H-1B expires will the customs let me enter the USA? We planning to go back to USA on Sept 20, 5 days prior my visa expiration. So, can I pass the border successfully or I will be denied in entering USA?

I also applied for parole entrance but in application I pointed that I wish this parole be valid from 1 Oct 09.

Will I have a problem with entering USA using my H-1B visa? Or we shall wait till parole be activated?

Thank you!

[metals95 1]

If you have the H1B visa stamp from the consulate you should still be able to return on your still valid H1B. In the past I returned on an H1b that had one week left, but I am visa exempt so don't need a stamp (since Canadian).

Edited July 18, 2009 by metals95

[Bobby+Umit 161]

I would think you would have issues with your visa being that close to expiration. I doubt CBP would let you back in. (5 days?)

Also - would you still be working for the same employer when you return? Leaving now, without the AP could be considered abandonment.

The second important exception to potential abandonment applies to a valid H or L category status applicants who may travel outside the U.S. during Adjustment proceedings without seeking Advance Parole, provided:

Applicant intends to resume employment with the same employer for whom the original H or L visa was originally issued;

Applicant is in possession of a valid H or L visa; and,

Applicant is in possession of the original I-797 receipt, which acts as evidence of the filing of an Adjustment of Status application.

Dependents and spouses in lawful H or L status may also travel with the principal applicant as well, provided their dependent status remains valid per its terms.

Although the use of Advanced Parole by the holder of an H or L visa can prevent the abandonment of Adjustment proceedings, it may cause the cancellation of the H or L status of the holder. The decision to travel while an Adjustment of Status application is pending can impact the processing of the application, and in some cases, can be cause for the ultimate denial of the Adjustment of Status application. An immigration attorney should be consulted regarding this decision to ensure that the application is not jeopardized.

I only question this, since you have only a few months left on your H-1B visa, so that leads me to believe you are not working now?

Best thing you could do - use the AP to travel, not count on the H-1B. (did you get the AP all ready?)

[metals95 1]

If you are still working for the same employer, your H1b is still valid, no matter how much time is left. Plus H1b is dual intent, so if there is a concern about ongoing employment you can tell the guard at the poe, infact their computer will probably tell them about your 485. You do not have to use your EAD or Advanced parole until your h1b expires. Ask your HR to ask the company lawyer if you have concerns.

[metals95 1]

If you are still working for the same employer, your H1b is still valid, no matter how much time is left. Plus H1b is dual intent, so if there is a concern about ongoing employment you can tell the guard at the poe, infact their computer will probably tell them about your 485. You do not have to use your EAD or Advanced parole until your h1b expires. Ask your HR to ask the company lawyer if you have concerns.

Better yet, post your quote in one of the many Employment based forums for h1b all over the net, I am sure that this questions has been asked a million times in employment based immigration forums.

Edited July 19, 2009 by metals95

[JackDp 1]

I would think you would have issues with your visa being that close to expiration. I doubt CBP would let you back in. (5 days?)

Also - would you still be working for the same employer when you return? Leaving now, without the AP could be considered abandonment.

The second important exception to potential abandonment applies to a valid H or L category status applicants who may travel outside the U.S. during Adjustment proceedings without seeking Advance Parole, provided:

Applicant intends to resume employment with the same employer for whom the original H or L visa was originally issued;

Applicant is in possession of a valid H or L visa; and,

Applicant is in possession of the original I-797 receipt, which acts as evidence of the filing of an Adjustment of Status application.

Dependents and spouses in lawful H or L status may also travel with the principal applicant as well, provided their dependent status remains valid per its terms.

Although the use of Advanced Parole by the holder of an H or L visa can prevent the abandonment of Adjustment proceedings, it may cause the cancellation of the H or L status of the holder. The decision to travel while an Adjustment of Status application is pending can impact the processing of the application, and in some cases, can be cause for the ultimate denial of the Adjustment of Status application. An immigration attorney should be consulted regarding this decision to ensure that the application is not jeopardized.

I only question this, since you have only a few months left on your H-1B visa, so that leads me to believe you are not working now?

Best thing you could do - use the AP to travel, not count on the H-1B. (did you get the AP all ready?)

Thank you!

No, the AP is not issued yet and I'm waiting for it. And I know I'll be fired in August....-( So technically my H-1B will not be valid but how the officer will find out this?!?!? The company will keep silence about me.....

[Chica Yeyé 41]

In that case, you will be better off waiting for your AP. Do not try hoping that the CBP folks will not know. They will. How? It doesn't matter --- why would you risk being denied re-entry?

[Bobby+Umit 161]

I would think you would have issues with your visa being that close to expiration. I doubt CBP would let you back in. (5 days?)

Also - would you still be working for the same employer when you return? Leaving now, without the AP could be considered abandonment.

The second important exception to potential abandonment applies to a valid H or L category status applicants who may travel outside the U.S. during Adjustment proceedings without seeking Advance Parole, provided:

Applicant intends to resume employment with the same employer for whom the original H or L visa was originally issued;

Applicant is in possession of a valid H or L visa; and,

Applicant is in possession of the original I-797 receipt, which acts as evidence of the filing of an Adjustment of Status application.

Dependents and spouses in lawful H or L status may also travel with the principal applicant as well, provided their dependent status remains valid per its terms.

Although the use of Advanced Parole by the holder of an H or L visa can prevent the abandonment of Adjustment proceedings, it may cause the cancellation of the H or L status of the holder. The decision to travel while an Adjustment of Status application is pending can impact the processing of the application, and in some cases, can be cause for the ultimate denial of the Adjustment of Status application. An immigration attorney should be consulted regarding this decision to ensure that the application is not jeopardized.

I only question this, since you have only a few months left on your H-1B visa, so that leads me to believe you are not working now?

Best thing you could do - use the AP to travel, not count on the H-1B. (did you get the AP all ready?)

Thank you!

No, the AP is not issued yet and I'm waiting for it. And I know I'll be fired in August....-( So technically my H-1B will not be valid but how the officer will find out this?!?!? The company will keep silence about me.....

They will find out if they ask you if your still working for the company? You don't want to be caught in a misrepresentation crossfire.

I would wait for the AP.