ISSS recommends that you follow the advice of your immigration attorney. The information below is for general knowledge only.
H-1Bs who have begun the permanent residence (“green card”) process may have questions about whether they and their dependents can/should maintain their H status throughout the process, travel during the process, and use their Employment Authorization Documents. This can be a complicated area since no statute, regulation, or case law directly and fully addresses the situation. Most of the guidance on this subject is found in a few memos issued by USCIS. They do not have the force of law but do explain the immigration service’s understanding of the law and indicate how the agency is likely to handle certain situations. This handout attempts to address generally some of the common issues and questions.
In most cases, it is recommended that H-1Bs and H-4 Family Members maintain their H status throughout the entire Permanent Residence Process and have obtained their "green card". Use of Advanced Parole and/or the EAD can be part of an overall immigration strategy, but there can be serious consequences when doing so. Therefore, it is strongly recommended that you consult an immigration attorney before using these documents.
When an immigrant petition (I-140) has been filed (pending and approved), you may still maintain your H-1B status, travel abroad and apply for an H-1B visa for re-entry.
When you file an Adjustment of Status petition (I-485), you have the option to apply for Advance Parole (I-131) and an Employment Authorization Document (I-765) concurrently with the I-485 or later after you have received the I-485 receipt.
When an Adjustment of Status petition (I-485) has been filed and is pending, you may maintain your H-1B status while in the U.S. Use of the Employment Authorization Document (EAD) could result in abandonment of H-1B status.
Remember that H-1Bs and H-4s may maintain their status and obtain visas (if otherwise eligible) while seeking permanent residence. Furthermore, Hs do not affect their status in any way by simply applying for or receiving the advance parole travel document and the employment authorization document (EAD). It is using the travel document or the EAD that gives rise to questions and confusion.
This information was adapted from information prepared and written by Steve Springer, past Assistant Director, International Student and Scholar Service, University of Texas. Special thanks also to Carol Holz, Associate Director, Immigration Compliance, University of Alaska Fairbanks.
Note: The above information provides guidelines for travel and continuing employment while in the U.S. permanent residency process. It does not constitute legal advice. For specific questions, it is advisable to consult with an immigration attorney.