First of all, I should thank Pjiang to have provided me a "chance" to strengthen my arguement here. And I think this discussion would be helpful to people who have real concerns on the issues we are focusing on.
Second, I have to say, "forgive me for breaking my own words". I said if Mr. Pjiang's argument is limited to his brave "guess the taste of tone", my previous post would be my last response to this issue. Here, Mr. Pjiang's new "teaching" did not add anything new other than "guessing the taste" one more time. But I am still willing to spend some time on his new "teaching".
Pjiang did not simply "mention" his premise (H-1>using AP> no H-1 status) for my inquiry on the effect of using EAD on H-4 status. He affirmtively claimed this as the basis of his conlusion on the EAD/H-4 issue. I caught this issue with a simple logic: if his premise is wrong, his conclusion from that premise is equally wrong although this conclusion has other faulty grounds.
Let me ask Mr. Pjaing to solve this following situation: A got H-1B status with a limit of three years on 1/1/2007; he filed I-140/I-485 on 2/1/2007; he received AP/EAD on 5/1/2007; he left US on 8/1/2007 and returned to US with AP on the same day; his I-94 based on the AP allows him to stay in US until 8/1/2008; he then continued to work for the same employer until 8/2/2008; he did not file H-1b extention after returning to US; his I-140 is denied on 8/3/2008. What status will A be on 8/4/2008?
Let me help Pjiang to asnwer with his "premise": when A enters with AP, he is no longer in H-1B status even if his original H-1b petition is still valid; after the expiration of his AP authorized time of stay and the denial of his I-140 petition, he would be OUT OF STATUS. right? correct me if I am wrong (but do not argue with me that he can overstay his parole time without any other valid status).
The real conclusion should be: A will not be out of status; he will be in his valid H-1b status even he did not file H-1B extention before the expiration of his parole status. Pjiang's problem is his understanding that H-1b status cannot co-exist with parole status; once A enters with AP and is granted parole status, his H-1b status is gone with the wind. The parole status only allows A to stay in US for one year; after that, he will either be illegally present or legally present with other valid status.
The "duel intent" rule is supposed to bring convenience, rather than trouble to H-1b holders. If we follow Mr. Pjiang's interpretation, Congress would say this to H-1b holders, "hay, guys, please work hard for your emplpyers. I will give you the chance of extention; I will allow you to apply green cards without the worry of being out of status; I will make things convenient by allowing you to enjoy the benefits of I-485, such as granting you AP and EAD based on AOS; and you can........oh, oops, wait a minute, I made a mistake, please do not use the AP, otherwise you will be out of your H-1b status after you return with AP, sorry, guys"
Any interpretation detaching from common sense, no matter how reasonable it is based on the plain words, would be very suspicious. Mr. Pjiang's interpretation on the effect of AP on H-1b status deprives the benefits that the duel intent rule has brought to the H-1b holders. In fear of losing their H status after returning with AP, they would have to abandon their planned departure/arrival from US. Or they would have to immediately file the H-1b extention (no matter whether they are close to the three-year limit) each time they come back with AP. The rule would actually increase, rather than release the burden on H-1b holders who are in the process of applying green cards.
After the general discussion, let's take a look at Pjiang's reading on the memo, which, is his sole authority.
"3. If an H-1 or L-1 nonimmigrant has traveled abroad and was paroled into the United States via advance parole, the alien is accordingly in parole status. Does this interim rule allow him or her to now apply for an extension of nonimmigrant status?
Until the final rule is published, an alien who was an H-1 or L-1 nonimmigrant, but who was paroled pursuant to a grant of advance parole, may apply for an extension of H-1 or L-1 status, if there is a valid and approved petition. If the Service determines the alien's application for an extension of nonimmigrant status, the decision granting such an extension will have the effect of terminating the grant of parole and admitting the alien in the relevant nonimmigrant classification."
Pjiang's reading on these words implies that USCIS buries their position on the H-1b status after using AP in the question, rather than in the answer. True, the question bears a conclusion that, when one uses AP to enter US, he is granted a parole status. Pjiang then went further by stating/implying that since the H-1b holder was granted the parole status, he loses his H-1b status.
Pjiang's guess was also based on the second sentence of the answer. Here Pjiang ignores the nature of I-94 form. Each alien cannot have two different I-94 form at the same time which determines his authorized stay in the US. When you acquire a new I-94 form based on the change or extention of a nonimmigrant status, your old I-94 is automatically invalidated no mater whether you have used up the time stated in the old I-94 form. When a H-1b holder returns with AP, he is granted a I-94 which is based on the AP (normally there is one year time limit). The second sentence in the answer has nothing more than to say: at the time when you receive your extension approval with the new I-94, your old I-94, which evidences your parole status, is invalidated. Gone with the invalidation of the old I-94 is your parole status and you are treated as if you entered with a H-1b visa. This sentence has no implication that using AP will cause the break of H-1b status (while the H-1b petition is still valid).
There is nothing new in the question by using the word "accordingly". It only emphasizes the logic connection between using AP and parole status.
Using "accordingly" has no implication that granting a parole status will automatically invalidate the previous H-1b status. Otherwise it would lead to the ridiculous conclusion as stated above.
Pjiang's reading on Q4 has the same problem. I will not re-state my analysis on that.
Let's turn to Q2. We have to agree that the question sentence for Q2 is pretty vague by combining H-1, L-1, H-4 and L-2 together. But this does not interfere with correct reading on this question.
First, Pjiang's reading contradicts with Congress intent of developing "duel intent rule". If an H-1 holder can legally maintain his status and stay in the US after the denial of I-140 petition (and keeps working for his employer) while his H-4 wife loses her H-4 status after using EAD, the wife would be forced to leave this country while her hu*****and can continue to stay. Isen't the burden on the H-4 wife effectively imposed on the H-1 holder? How can the H-1 hu*****and peacefully work for the employer while his wife is pushed into the out-of-status immigration trouble?
H/L dependents are enjoying the same benfits from the "duel intent" rule. H-4 and L-2 can maintain their status while filing the immigration application if their corresponding H-1 and L-1 can still maintain their status. We can divide Q2 into two parts, one is concerning H-1/L-1 and the other part is cncerning their dependents. As to H-1 and L-1, Q2 clearly means that if the H-1/L-1 are still working for their H/L sponsoring employer without the violation of the terms or conditions for the H/L petition, receiving an EAD has no effects on their status. It is further true if H-1/L-1 uses the EAD, most of the time they will not be able to maintain their status.
If the H/L are still working for the sponsoring emplyer under the terms and conditions of H/L petition, keeping a EAD is useless at all. Most of the time, using EAD means the H-1/L-1 are being out of their H/L status, either by starting working for a new employer or a different position with the same employer. Under either condition, the H-1/L-1 lose their H-1/L-1 status. But the core of losing the status is not because of receiving or using EAD, it is because the alien violates the terms and conditions in their respective H/L petition. So the Q2 ansnwer is pretty reasonable in stating that "the fact of receiving EAD is not a cause of losing the status" if the status is otherwise maintained.
Let's turn to the H-4/L-2 dependents. First, you have to agree that maintaing H-4/L-2 is different from maintaining H-1/L-1. Status for dependents are effectively maintained if the principal status is maintained and there is no other invalidating reasons. It is true that H-4/L-2 status does not render the holder the benefit of employment. But this does not mean that H-4/L-2 cannot otherwise acquire/and use the employment authorization. H-4/L-2 violate their status if they choose to work as H-4/L-2 and there is no authorization. If they acquire a valid employment authorization, there is no statute/regualtions forbidding them to use the authorization, or using the authorization will cause the loss of the status.
Duel intent rule actually creates duel status for H/L. It is allows the H/L to enjoy the benefit of AOS while maintaing the H/L status. It is contrary to common sense (and Congress intent) if enjoying the AOS benefit will cause the loss of H/L status while H/L status is inependently maintained. Working with I-485 derived EAD by the H-4/L-2 is to enjoy the benefit of AOS. If this will casue the loss of H-4/L-2 status, it is totally contrary to the spirit of duel intent rule. Q2 answer has no such implication. It merely states that getting EAD does affect otherwise maintained H/L status (especially H-1 and L-1). It does not speak on the effect of using EAD on H-4/L-2 status. If Pjiang's reading is correct, USCIS could have simply declared that all H-4/L-2 are not eligible to apply I-485 derived EAD if they want to maintian their H-4/L-2 status. Receiving EAD by H-4 is totally useless if they cannot use it to seek employment without the risk of losing H-4 status.
OK, I think that's all for my response to Pjiang's new "teaching". There are some collateral issues. First, Pjiang did not care about my ID at the beginning. Now he further "guess" that I have connections with attorney wang becuase of the similarity of my ID and the fact that I quoted Mr. Wang's statement. I wonder why Pjiang's imagination did not put me to be more connected with www.mylawyer.com or www.mylawyer.net.
Second, someone may ask why I came here to start the discussion with Pjiang. My answer is: I happen to have some legal training; I happen to have some interest in immigration law and I happen not to be able to endure some misleading statements.
Third, Pjiang keeps his empty statement that I did not provide any authorative evidence. This is a totally lying. I agree that my homework is not thourough enough, so that I relied on a licensed lawyer, on law professors and practioners who wrote (and definitely have read the memo that Pjiang read) the immigration practice guide for all immigration lawyers around this country. Pjiang treats his reading on the memo the ultimate authority, any other lawyer's or law professor's reading in contrary to his reading is wrong. So Pjiang's authority is himself. I do not have such confidence.
Again, I have to restate my policy. If Pjiang keeps his arguement on his "guess the taste of tone". This would be my last response. Also I will not spend any time to his response to the other two misleading statements. It simply does not worth my time.