Hiya, my wife has a pending 485 through employment and she still has a valid Advance Parole till this November. She is on a business trip to Europe at the moment and just found out her H1 visa has expired last month.

Will this expired H1 visa be an issue when she comes back to US?

Your immediate answer will be appreciated. Thanks.

Exo: Has your wife's H-1 status expired...or is it only the H-1 visa itself that has expired?

As long as she has Advance Parole, she will be able to re-enter the U.S. Make sure she has it with her.

However, I do suggest that once she returns, she should get back on H-1 Status and maintain until green card is approved.

Advanced Parole covers her. Remember parole is for those who do not have status. Her H-1B status ended when the I140 and 485 were filed. When she returns from overseas each time she was paroled back in, note the parole stamp on her I-94 Arrival/Departure Record. She no longer received an I-94 with an admission stamp and an H-1B status.

Actually, H-1B remained valid until it expired. H-1B is a dual intent non-immigrant visa category which means you can continue to maintain and extend H-1B status up to and until you get the green card/I-485 is approved.

Also, when she does re-enter, she will get an I-94 card noting that she entered on AP and is pending adjustment. Which is why it is always better to jump back into H-1B if possible just in case there are any problems with I-485.

Thanks all for good information.
So basically H1 is nothing to do with Advance Parole. AP is only related to I485.

I think that both H-1 status and visa have expired since she has reviewed it twice already. Our lovely Eastern Service Center (Vermont) is so efficient that she still has to wait at least another year for GC. She filed I485 about two years ago.

This message has been edited. Last edited by: Exo,

Although she should not have a problem with re-entry. The AP is not a guarantee of admittance. It should only be used for emergencies, not casual travel.

What was the I-485 based on? Is her priority date current?

I would still advise that once she re-enters the U.S., she should seek to re-start her H-1B. Are you on H4? If you were on H4, your only current status is now "pending adjustment of status."

Wrong, dual intent has nothing to do with it. Once you are paroled in, you have parole status, not H-1B status.

Her H-1B status is no longer, she has parole status.

Yes- once she comes in she is a parolee. But she can regain her H-1B by filing a H-1B new petition and getting the visa and re-entering with the H-1B which is advisable for many people awaiting adjustment.

quote:

What was the I-485 based on? Is her priority date current?

I am pretty new to this immigration terminology so bear with me if I answer something irrelevant.

Her I-485 is based on Employment (EB3) and has submitted the application roughly two years ago. Her extended H-1B visa has just expired. Basically her company has been taking care of her application and other things through a lawyer but they told her to take care of her stuffs from now on due to the bad economy. In other word, she has to pay the lawyer from now on. Well it is not cheap so we decided to do on our own till she gets her GC.

I am a US citizen and we got married this year. It is kinda tricky to another I485 again based on Marriage at this time.

Do you know when her labor certification was filed? If it was filed 2 years ago and depending on what country your wife is from, you're looking at least another 5-7 years before she gets her green card. The EB3 category is what they called "retrogressed." They are now only granting green cards to person's whose priority dates were in 2001-2002. Priority date is determined by the date the labor certification was filed.

Going through a marriage case may be a much better option for your wife at this point.

Wow, I didn't know that the waiting time is that long for EB3. By the way, she is from Korea.

I guess that we should starting working on GC marriage case after she comes back. BTW, do we have restart from nothing? or somehow we can use some forms she has already filed two years ago? since some forms are common.

Thanks for great help.

Exo: If your wife's H-1B status has expired, then she cannot adjust her status through employment. Adjustment of status through employment requires that the beneficiary maintain continuous legal status.

If you're an American citizen, then why haven't you applied to adjust status through marriage?

SunDevil- she already filed her Adjustment when she was in vaild H-1B status (2 years ago). The filing of the Adjustment now keeps her in status regardless of her H-1B.

Exo- you will have to file all the forms again unfortunately. There is no method to move an Adjustment of status application from an I-140 to an I-130.

You need to file an I-130, I-485 with I-765 and I-131 again. You don't necessarily have to file the I-765 and I-131 again if your wife has these documents but might as well since you're paying $1010.