discussion on AP and H-1B with Murthy law firm and Mr. Mailman

I had a very hot fighting with someone on this topic several months ago. Recently, I read another relevannt article written by another lawyer. Most people seems to have accepted that after using AP, the alien cannot be classified as H-1 until he/she actually gets the approval of H-1 extension or transfer. I consulted this issue with the famous Murthy law firm and two leading immigration scholars who wrote the immigration law treaty book Immigration Law and Procedure. By the way, this book has been frequently cited by immigration judges.

Here are our email communications. If you are interested in this topic, read through all of them and make your own judgment. I agree with Mr. Mailman on his interpretation on the famous May 16 2000 memo and I do not agree with Murthy law firm.

Communications with Murthy law firm:

(1)

Dear Ms. Murthy,

How are you? I frequently visit your website which provides very valuable information for all people who came to US from around the country. Recently I read one of your newletters on using AP and its effect on /H/L status. ( Effect of Travel While in H1B / L-1 Status and Pending I-485" Posted Mar 21, 2008 http://www.murthy.com/news/n_efftrv.html). Your point is that after using AP to enter the US, H/L will not longer be in their former H/L status.

But I found that your point is totally different from a teaching book by Charles Gordon, Stanley Mailman and Stephen Yale-Loehr. In their 2007 "immigration law and procedure", they said,

"What happens if the H-1B or L-1 nonimmigrant, or the H-4 or L-2 family member, nevertheless obtains advance parole before departure and is paroled into the United States on return; is that individual then precluded from being treated as a nonimmigrant; and if she lacks an EAD will the Service treat her employment thereafter as unauthorized? After an initial administrative hiccup, the Service has taken the following position in a field memorandum pending a final rule: An individual who had the option of being admitted in H-1B or L-1 status may still continue to hold her nonimmigrant status even if she chose to be paroled (assuming she had not violated status), and she may seek an extension of that status, provided her nonimmigrant petition is still valid. To take advantage of the INS interpretation, the H-1B or L-1 worker would have to be returning to the employment authorized by the underlying petition. To work at another job she would have to rely on an open-market EAD" (the quoted words are from the section of "adjustment of status to permanent status"; I added the emphasis).

Can you give me some comments on this? Or can you make a new newsletter and give me a link for that?

I really appreciate your help and time.

Best!

(2)
Dear Sir or Madam:

Thank you for your email. There is a memo that allows an individual who has a valid H-1 petition or L-1 petition, that enters on advance parole to extend their H or L status within the U.S. if they return to work for the same employer. However, this does not translate to actually holding H or L status in the U.S. when entering on advance parole. It essentially means that some of the privileges of H or L status are retained, but the individual is not actually regarded as being in H or L. Therefore, in this situation, if the I-485 was denied, the individual would not revert to H or L, they would be out of status.

This is a very complicated and subtle area, which has been governed by memos rather than regulation. This is the reason that it is not 100% clear, as it is a matter of USCIS interpretation and their commentary rather than more straightforward law or regulation.

Regards,

Dana J. Delott*
Senior Attorney
Murthy Law Firm

(3)
Hi, Dana,

Thank you very much for your answer and please call me "Sir" if I still have chance to receive your further opinion.

Based on your opinion that the person will be out of H/L status after using AP, I have some further questions:

1) Normally, the AP-based I-94 allows the alien to stay in US for one year. If your point is right, does the alien need to start the H/L extension proceeding shortly after he come back with AP (and doing so every time they come in with AP), even if their original H/L petitions have one or two years away to expire? Because if they cannot regain the protection of H/L status, as you said, they would be OOS immediatly after the 485 denial. Actually there is time limit for H/L extension, does USCIS allows the extension if the H/L petition have one or two years to expire?

2)For extension of every nonimmigrant status, USCIS requires the alien must be in that status before filing the extension petition. If using AP causes the break of original H/L status, how does USCIS allow the "extension"? You may say that the "memo" makes the exception for H/L extension under this scenario. But I feel the other way. First, USCIS did not use the word "exception" and just said that the alien has no problem for extension. Second, doesn't the word "extension" imply that the alien was continuously in H/L status after using AP? It is pretty rare for the agency to break the general extension rule without clearly saying so.

3) AP is regarded as one of the incidental benefits for 485 application. If on one hand, the agency allows the H/L holder to apply 485/AP/EAD without worrying about OOS if they maintain their H/L status with their employers; on the other hand, the agency treat using AP as the cause of loss of the H/L status. Isn't this weird? Most H/L 485 applicants have to face this problem and I do not think it is a small issue. Don't you think that at least, the agency should have somehow warned the applicants on using AP if your interpretation is right? Checking cross the instructions for all immigration forms, the agency always give some warnings on critical issues. is the agency just blind on this issue?

4) So, you think that "immigration law and procedure" is wrong on this point?

It is really my pleasure to talk with you on this legal issue. I really appreciate your further discussion! Thanks!

Best!

(4)
Dear xxxxxx:

Thank you for your email. If you want to discuss this matter, you should set up a consultation. The situation does not follow a perfect logic. Essentially, when a person comes in on advance parole they are a parolee, but under the memo they get some of the privileges of being an H or an L. They can actually work for the period that the H or L is valid. Additionally, although the parole document has a one year expiration date, people are still legally here based upon having the I-485 pending. They do not become unlawfully present or out of status simply because the parole expires.

We are not allowed by our insurance company to provide legal advice on case specific situations without an Attorney / Client relationship ........


Communications with Mr. Mailman

(1)

Dear Mr. Mailman and Mr. Yale-Loehr,

How are you? My name is.......

...... if an alian in H-1 or L-1 status in the United States who has a pending I-485 application decides to use advance parole (AP) to re-enter the US after departure, is she still in her previous H-1 or L-1 nonimmigrant status provided that she returns to his H-1 or L-1 employer and there is no any H or L term violations?

I know that your answer to this question in your book is YES. The relevant words in your book are:

"What happens if the H-1B or L-1 nonimmigrant, or the H-4 or L-2 family member, nevertheless obtains advance parole before departure and is paroled into the United States on return; is that individual then precluded from being treated as a nonimmigrant; and if she lacks an EAD will the Service treat her employment thereafter as unauthorized? After an initial administrative hiccup, the Service has taken the following position in a field memorandum pending a final rule: An individual who had the option of being admitted in H-1B or L-1 status may still continue to hold her nonimmigrant status even if she chose to be paroled (assuming she had not violated status), and she may seek an extension of that status, provided her nonimmigrant petition is still valid. To take advantage of the INS interpretation, the H-1B or L-1 worker would have to be returning to the employment authorized by the underlying petition. To work at another job she would have to rely on an open-market EAD. A dependent family member relying on an EAD for work authorization would be safer to return as a parolee, at least pending a more explicit final rule."

The May 26, 2000 INS memo said that she can "extend" her former H or L status if she chooses to use AP anyway. The memo further said that the grant of parole is terminated after the alien is granted the H/L extension.

Some other lawyers insist that the alien loses her H/L status after using AP and can resume the H/L status after the "extension". I totally agree with your position on this issue. If the alien cannot resume her H/L status immediately (without extension) after using AP, how can she extend the H/L status given the general rule that the alien must BE in the nonimmigratnt status before she can file nonimmigrant status extension?

My nexy question is: Is your mentioned "field memorandum pending a final rule" the May 26, 2000 memo? or is there another memo?

Dear Mr. Mailman and Mr. Yale-Loehr, if you can spend some of your precious time and answer my question, I would greatly appreciate it.

have a good weekend!

(2)
Thanks for your email. Stanley writes that section of the treatise, so he will answer your question below. He may know where the memo is that you are looking for. If you can give him the precise section and footnote no. you are referring to, that may help him. Thanks, Steve Yale-Loehr

(3)

xxxx, We deal generally with the issues you raise both in sections 20.13[8] (re the H-1B classification) and 51.06[2][c] (dealing with adjustment), citing the INS May 16 (not May 26), 2000 memorandum at both sections. That memorandum pretty well covers the territory. The question you ask, I think is this: although the person in question, permitted ingress on the AP document, may revert to the nonimmigrant status (provided the petition is still valid), what is her actual status until she takes a stance? If she is returning to her H-1B or L-1 job she can claim her nonimmigrant status by appropriate entry on the I-9 with a copy of the parole document and a copy of the memorandum. That should be followed by an application for extension. If she seeking another job she would consider herself a parolee and seek employment authorization or renewal of the EAD. As I say in the text, the answer may depend too on what the accompanying dependent wishes to do. So far as I know, the promised clarification by regulation or memorandum was never issued.

Stanley Mailman
Satterlee Stephens Burke & Burke LLP
230 Park Avenue
New York, NY 10169


In Mr. Mailman's last email, pay attention to his words "until she takes a stance". This "stance" should mean that the alien finally files H1 extension/transfer (before the H-1 petition expires), or choose to use EAD to work for another employer, or gives up her H-1 extension opportunity and let the valid H-1 petition expire. Mr. Mailman answered what is the alien's ACTUAL status before she takes stance.

Hope this will be helpful to those who have confusions on this topic.

所有跟帖： 

• 用了AP入境，是不是就失去了H1B的身份？ -mylawyer- ♂ (2472 bytes) () 11/13/2008 postreply 06:43:11