Immigration Site

I have been searching all over the web to get answers and it seems like even very experienced and reputable lawyers are unclear about this.

I am/was on H1b , My I485 is pending and I traveled abroad, got married and came back using Advance Parole. My wife applied for H4 afterward and got it in a few days. I am still working according to my I797 approval with my h1b and GC sponsoring employer. Can my wife use her H4 to enter US?

Now I know I am no longer in H1b status( I am parolee) but did using the Advance Parole terminate my H1b status or Is it just like If I go outside the US then I am no longer in H1b status (or any status for that matter) while I am outside the US. Can somebody shed some light on it please?

This is a bit of a gray area, and USCIS/DoS has not been entirely clear and consistent about it.

Technically you are now a parolee, although you are still allowed to keep most of the benefits of H1B status (particularly work authorization and the ability to change or extend status within the US) by continuing to work for the H1B employer. However, it is not so clear that this includes admission of a spouse into H4 status.

http://immigrationvoice.org/forum/fo...ml#post1597904
This is yet another issue for which DHS has provided no clear guidance. I think a good argument can be made that as long as the H-1B is in the US maintaining valid H1-B status, the spouse is entitled to issuance of an H-4 visa, and it should not matter that the H-1B used AP to enter the US.

Unfortunately, DOS does not agree with this argument as the following excerpt from an AILA/DOS liaison meeting makes clear:

"QUESTION:
14. Posts appear to have no predictable policy respecting the continued eligibility of a spouse/dependent for H-4 or L-2 status where the principal is maintaining H-1B or L-1 status but has re-entered on an Advance Parole document. The May 16, 2000 INS Cronin memo does not resolve the question. What is the policy? If you cannot answer clearly, why not? If this is a matter we must pursue with DHS, can you tell us with whom to pursue it? (We ask knowing the last question may be the most difficult to answer...)
ANSWER:
An H-4 or L-2 is only available if the principal applicant is in the U.S. on H or L status. If the principal applicant has been paroled into the U.S., she or he is not in the U.S. on H or L status, and dependents would not be eligible for derivative H or L visas. Because DHS rules no longer require principal applicants awaiting adjustment to enter the U.S. on parole status, there does not appear to be any reason why the principal H or L should not be traveling on a visa rather than obtaining parole. See the information we provided to AILA when this issue arose in the March 4, 2004 meeting, including 8 CFR 245.2(a)(4)(ii)(C) and 9 FAM 41.11 N6. Even if they let her in with the H4, the person later deciding the I-485 could connect the dots and decide she was not eligible for entry in H4 status, and therefore not eligible for the I-485. To avoid that nightmare scenario, you should leave the US and get H1B stamped in your passport, then reenter with the H1B. After that, youll be fully in H1B status and your wife can enter with the H4 and file I-485 without that worry.