Re-entered in new H1B status instead of parole. Petition/AOS abandoned?

[Abhi88 1]

I was in the F1 status when my spouse and I got married, following which we concurrently filed a petition for green card and adjustment of status. While both are still pending, we received my EAD/AP and soon after traveled to my home country. During my time there I got an H1B visa (consular processing - no COS) based on which I was admitted back into the US recently. So, I am now in the H1B status. Note that I was not in the H status when departing the US, but was readmitted in the H1B status -- and had approved advance parole before departure.

 

Have I inadvertently abandoned the petition/AOS by not being paroled back into the US? As per 8 CFR 245.2 (a) (4) (ii) (B): The travel outside of the United States by an applicant for adjustment who is not under exclusion, deportation, or removal proceedings shall not be deemed an abandonment of the application if he or she was previously granted advance parole by the Service for such absences,and was inspected and paroled upon returning to the United States.

 

Or was there no abandonment as per 8 CFR 245.2 (a) (4) (ii) (A): ...the departure of an applicant who is not under exclusion, deportation, or removal proceedings shall be deemed an abandonment of the application constituting grounds for termination of any pending application for adjustment of status, unless the applicant was previously granted advance parole by the Service for such absences, and was inspected upon returning to the United States.

 

Assuming I didn't abandon the application, have a few questions about changing employers in the near future.

• When I change jobs, will my H1B remain valid? Or does the H1B become invalid and I am automatically switched to the EAD/parolee status?
• Does the procedure remain the same as any other person on H1B changing jobs, with the new company applying for a transfer?
• What happens if I start using my EAD and it expires or the green card application is rejected for any reason? Can I go back to using the H1B at that point since it is valid for 3 years, or do we need to go through the whole process again starting with the lottery?
• Is there anything else I should consider before changing jobs, or maybe delay it a few months until I actually have my green card?

[Hypnos 6,576]

An H-1B is dual intent, and doesn't require you to obtain AP to be able to travel overseas without abandoning your AoS application. However, you didn't obtain the H-1B until you were overseas. I'm somewhat struggling to understand why you obtained the H-1B in the first place. You didn't need it, and everything it grants you you already had by virtue of the AP and EAD and the pending I-485 you already filed.

 

I suspect you'll be ok, but mixing things up like this isn't the smartest thing you could have done. A consultation with an experienced immigration attorney might be a good idea.

Edited December 20, 2017 by Hypnos

[Ontarkie 14,234]

~~Moved to AOS from Work, Student and Tourist Visas, from Work Visas - As the OP is asking about AOS"ing.~~

~~Duplicate thread removed.~~

[azblk 338]

My  thinking exactly. Only thing I can see is H1-B as some sort of insurance policy incase the marriage based AOS is denied or OP'S marriage falls apart.

[WeGuyGal 1,052]

Green card application for a bonafide marriage is rarely rejected.  H1Bs more likely to be scrutinized due to seepage of fraud. 

[azblk 338]

1 hour ago, WeGuyGal said:

Green card application for a bonafide marriage is rarely rejected.  H1Bs more likely to be scrutinized due to seepage of fraud. 

sometimes marriages fail in fact 50% of all marriages in America fail.

[geowrian 22,337]

41 minutes ago, azblk said:

sometimes marriages fail in fact 50% of all marriages in America fail.

Over the long term, sure. But usually not in the months it takes to get AOS approved (after having already received an EAD + AP).

[WeGuyGal 1,052]

1 hour ago, azblk said:

sometimes marriages fail in fact 50% of all marriages in America fail.

Read the context re: my post.

Then go over it again. 

[Abhi88 1]

The reason why I got an H1B is that my travel could not be delayed under any circumstances and I needed a way to re-enter the US if my advance parole was not approved in time for departure. Interview appointments had already been made and visa fees paid, along with other arrangements/expenses to go to the consulate in another city to get the visa stamp. Luckily my advance parole happened to be approved a couple of days before I exited the US, but we didn't receive it in the mail until after I had left. Having already paid for everything and also on the advice of my employer's immigration attorneys, I decided to get the H1B as a backup in case my application was considered abandoned since I didn't have the advance parole in hand yet at the time I left the country.