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How to maintain H-1B status after travelling on advance parole

What is the H1B Visa and Advance Parole?

H1B Visas

H1B visas allow U.S. employers to hire foreign workers temporarily in specialty occupations. H1B visas fit into the category of employment “H” visas because they are for non-immigrant workers. H1B visas are specifically for workers in certain specialty occupations who wish to be employed in the U.S. temporarily. A worker using a H1B visa cannot stay in the U.S. permanently. However, an H1B visa holder may apply to adjust their status to be a lawful permanent resident (green card holder). 

Advance Parole 

The Advance Parole is a separate travel document that allows individuals who are waiting to be issued their Green Card to travel internationally. This includes individuals who are adjusting their status. 

Advance parole can be issued to individuals inside or outside the United States. However, an advance parole is issued for more limited reasons. Thus, individuals inside the United States will receive an advance parole only if the trip is for educational, employment, or humanitarian purposes. Individuals outside the United States will receive an advance parole only if the trip is for an urgent humanitarian reason or significant public benefit reason. 

To receive an advance parole, an individual must submit the Form I-131, Application for Travel Document.

Why Should I Be Cautious of Advance Parole if I am an H1B Visa Holder? 

It is common for H1B nonimmigrant visa holders to desire to seek lawful permanent resident (green card) status by adjusting their status.

When individuals adjust their status, they must apply for lawful permanent residency by submitting Form I-485, Application to Register Permanent Residence or Adjust Status. However, it can take 8 months or longer for Form I-485 to be approved, and some individuals may need to travel outside the United States while their Form I-485 is pending. This is a common use for the Advance Parole document. 

Many H1B visa holders who are waiting for their adjustment of status application to be approved may believe that they must get an Advance Parole document to travel outside of the United States, but doing so may actually jeopardize their H1B status. 

H1B nonimmigrant visa holders are exempt from getting an Advance Parole when their adjustment of status application is pending. So long as the H1B visa is valid at the time they travel abroad, the H1B visa holder does not need an Advance Parole. In fact, H1B visa holders who attempt to re-enter the United States with Advance Parole after a trip abroad will terminate their H1B status and be labeled as a “parolee.” 

Though a parolee would still be able to continue working under the H1B employer, they would not be able to obtain H1B status again until their employer has filed an H1B extension petition or transfer and has the application approved on the H1B visa holder’s behalf.

H1B visa holders qualify for the H1B extension if their employment authorization would not have expired had they not attempted to reenter under Advance Parole. If the extension or transfer petition filed by the employer is approved, then the parolee status will terminate and H1B status will resume. 

It is important to note that applying for or receiving an Advance Parole document does not terminate H1B status; rather, re-entering the United States using the Advance Parole document is what terminates the H1B visa and makes the visa holder deemed a “parolee.” 

How Should H1B Visa Holders Travel While Adjusting Status?

The H1B visa is one of a few visas that is exempt from the Advance Parole requirement for overseas travel while an Adjustment of Status application is pending. 

In fact, H1B visa holders are eligible to travel overseas and reenter the United States using their valid H1B visa and their passport so long as the visa holder maintains the same H1B sponsoring employer. 

If I Travel with an Advance Parole, Am I Abandoning my Adjustment of Status Application? 

Generally, an Advance Parole is issued to ensure visa holders are not abandoning their adjustment of status application by traveling outside the United States. H1B visa holders are unique because no Advance Parole is required to avoid abandonment.

It is important to make sure, however, that if you do travel with an Advance Parole, that it is fully approved. After Advance Parole applicants apply for an Advance Parole with Form I-131, Application for Travel Document, they should wait to receive Form I-512 from the USCIS, which indicates the Advance Parole document is approved. The Form I-512 will allow travel abroad with abandoning adjustment of status. Importantly, a Form I-512 may be issued as approval for a single trip abroad or multiple trips, so visa holders should be sure to understand the limits placed on their Advance Parole I-512 document. 

What Happens to My Adjustment of Status Application While Abroad? 

One of the main reasons for the Advance Parole document is that it indicates to the United States Citizenship and Immigration Services (USCIS) that the visa holder is not abandoning their application to adjust status when they leave the United States. However, H1B visa holders are already deemed to not be abandoning their adjustment of status by leaving the United States, so the Advance Parole document is not necessary. 

The H1B visa holder must maintain their H1B status before leaving the United States, and then may apply for an H1B visa to re-enter the U.S. to work for their employer upon return. When the visa holder returns to the U.S. with a valid H1B visa to work for their employer, they are not considered to be in parolee status, but instead are still under H1B status, and their Form I-485 adjustment of status application is preserved.

What If My Form I-485 is Denied While I’m Overseas? 

H1B visa holders traveling overseas using an Advance Parole run the risk of falling out of status altogether if their application to adjust status is denied while they are overseas. This is because the H1B visa holder will fall out of status upon return to the United States on an Advance Parole, and won’t have lawful permanent resident status, either. While the individual can still work in the United States for their employer despite losing H1B status, they must receive an extension or transfer of H1B status before being eligible to apply for adjustment of status to lawful permanent residency. 

Will My Dependants Also Lose Nonimmigrant Status if I Travel Abroad on an Advance Parole? 

H1B visa holders who have dependents with them in the United States under an H4 visa will not only lose H1B status for themselves, but also their H4 visa dependents. This is because the H4 visa is a secondary visa tied to a primary visa, the H1B visa. 

H1B visa holders who decide to travel on an Advance Parole document should have their H4 dependants also obtain Advance Parole. 

Do My Dependents Need Advance Parole? 

H4 spouses who have an Employment Authorization Document (EAD) to work in the United States do need an Advance Parole document to travel outside of the United States. 

H4 dependents who are not working should be cautious about traveling outside the United States while their H1B relative’s adjustment of status application is pending. This is because the H4 visa is tied to the H1B visa. If the adjustment of status application is approved while the H4 visa holder is outside the United States, they will be deemed out of status and unable to enter on the H4 visa. To avoid such a scenario, an H4 dependent should travel with an Advance Parole document. 

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Sweta Khandelwal

Sweta completed her Masters in Law from the University of California, Los Angeles and her JD from the Faculty of Law, Delhi University in India and has been practicing law for 15+ years getting visas, green cards, and citizenship for 1000+ clients, 100+ companies across 50+ nationalities.

Sweta has been recognized as a ” Super Lawyer, Rising Star,” and as amongst the ” Top 40 under 40″ immigration attorneys in California (American Society of Legal Advocates). She is also the recipient of the Advocacy Award by the American Immigration Lawyers Association.

Sweta is also a chartered accountant — the equivalent of a CPA. This makes her uniquely positioned to understand the immigration needs of her business clients in the broader context of their corporate objectives.

Sweta is actively involved with immigration issues and immigrant communities in various capacities. She has assumed key roles at the American Immigration Lawyers Association (AILA), both at the local and national level. She has been a past chair at the Santa Clara Valley Chapter at AILA and has also been involved in various practice area committees at AILA National. Sweta has addressed multiple conferences/forums in the United States and worldwide on immigration and business issues.

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