General Introduction
Adjustment of Status (AOS) is a process whereby an alien who is physically in the United States adjusts his/her non-immigrant status to immigrant status (i.e. permanent resident status). First, an immigration petition (Form I-140) must be filed to establish the alien’s eligibility to immigrate. An immigration petition (Form I-140 in the employment based immigration situation) is a major step on the road to getting a green card. In most situations, this document is filed by the employer on behalf of an alien worker, although for instance an alien may apply for a NIW or an EB-1A on their own without an employer’s sponsorship.
In the past, the INS (now called the USCIS) allowed an alien petitioning for permanent residency on the basis of their employment based immigration petition (I-140) to file for I-485 adjustment of status application only after his or her I-140 immigration petition was approved. However, effective July 31, 2002, the USCIS allows the concurrent filing of an I-485 adjustment of status application with an I-140 immigration petition (EB-1, EB-2, and EB-3), if the immigrant visa number is available to them.
The basic benefit of applying for employment-based adjustment of status is that the alien has reached the final step in getting a Green Card. Once they can get their I-485 approved, they will become a permanent resident of the United States. In addition, there are four other major benefits:
The alien may simultaneously apply for Advanced Parole (AP), a document that allows the alien to travel abroad during the pending period of the AOS application without abandoning the application.
The alien may apply for an Employment Authorization Document (EAD), which allows the alien to work for any employer in the U.S. during the pending period of their AOS application.
An alien whose I-485 is employer sponsored (i.e. EB-1B, EB-1C, EB-2 and EB-3), may change employers 180 days after the filing of adjustment of status or the approval of the I-140 petition, whichever is later. This is thanks to the “portability rule,” which allows this as long as the new job is in the same or similar occupational classification as the job for which the original petition was filed
The alien has legal pending status to stay in the U.S. lawfully while waiting for the adjustment of their case. This is a major advantage utilized by many who do not have legal status at the time of filing.
Benefits and risks presented by Advance Parole, EAD, and the Portability Rule
Advanced Parole(AP)
An L-1A status holder may submit I-485 application for adjustment of status after his/her I-140 immigration petition is approved or concurrently filed with the I-140 petition in some occasions. In the I-485 pending period, if they want to travel outside the United States, there are three ways they can legally re-enter the U.S.:
The alien may apply for a visa revalidation from the Department of State if they have an original L-1A visa that is valid for 60 days or less, or they have an original visa that expired within the past twelve (12) months. Once the visa is revalidated, the alien may travel abroad and come back to the U.S. using the revalidated visa. In this scenario, the USCIS will not consider the alien’s AOS application abandoned.
The alien may go to a third country or their home country to apply for an L-1A visa if they never had an original L-1A visa. Once the visa is issued, the alien can use it to come back to the U.S. without their AOS application being affected. However, in this scenario, the alien faces the risk of their visa application being denied and thus not being allowed back in to the U.S. To safeguard their return to the country the alien might want to take advantage of Advanced Parole, which will be discussed in the next paragraph.
The alien is entitled to apply for Advanced Parole to travel abroad as benefit associated with an AOS application. Once approved, the Advanced Parole allows the alien to travel abroad and re-enter the U.S. After being paroled in, the alien can still change back to their L-1A status in the sense that they can still apply for an extension of their L-1A status. The alien simply must resume employment with the same employer for whom they had previously been authorized to work as an L-1A non-immigrant. In this scenario, the approval of that extension would enable the alien to re-enter the U.S. on L-1A status if they travel abroad in the future.
However, if after being paroled in the alien changes employer,, he or she may no longer resume a valid L-1A non-immigrant status, even though they can still lawfully stay in the U.S. during the I-485 pending period. Thus, if the alien's I-485 application is denied, they may not be able to lawfully stay in the U.S. as non-immigrant thereafter.
Employment Authorization Document (EAD)
For various reasons, an alien in L-1A status may want to apply for EAD, and they can do so along with the I-485 application either after their I-140 is approved or concurrently filed with I-140 application. However, for purposes of approval of the I-485, those who are on the L-1A status and whose AOS applications are employer-sponsored are required to prove their intent to work for the petitioning employer, even though their EAD technically does not restrict their employment.
If an L-1A holder decides to file for and obtain the EAD but never uses it to work, they are still in valid L-1A status and able to extend the L-1A as needed (up to the maximum allowable time on that status). The mere fact of obtaining the EAD does not affect one's status; only if the alien uses the EAD to take on another job or use the EAD to work for the current employer would they no longer be considered to be of L-1A status. Therefore, if an alien on L-1A status obtains an EAD and then goes to work for another employer or use it to work for their current employer while waiting for the completion of their AOS application, that action would effectively terminate the L-1A status of the beneficiary and they would have to file for AP to travel abroad and re-enter into the U.S. The alien in this situation would be admitted into the U.S. as parolee and no longer be considered as on L-1A status.
On the other hand, an L-1A holder who travels out of the United States and returns on advance parole is authorized to continue working for the petitioning L-1A employer. He/she would not be required to obtain an EAD to work for this same employer, within the validity dates of the L-1A petition approval.
The Portability Rule
For all those aliens who are beneficiaries (or applicants) of employer-sponsored I-140s, namely, EB-1B, EB-1C EB-2 (except NIW) and all EB-3, current immigration law allows them to change employers 180 days after the DATE of filing of I-485 AOS. This has been called the portability rule.
If the alien who is on L-1A status files I-485 application after their employer-sponsored I-140 is approved, they can take advantage of the portability rule ( i.e., they are allowed to change employers 180 days after the date of filing of I-485). In this situation, if the new employer petitions L-1A status for the alien, they will be on new L-1A status, which will maintain their lawful stay in the U.S. as non-immigrant even if the I-485 application is denied. However, if the new employer does not petition L-1A for the alien and the alien applies and uses EAD to work for the new employer, they are not considered to be maintaining L-1A status.Rather, they are considered to be inI-485 pending status. Thus, if their I-485 application gets denied the alien cannot stay lawfully in the U.S. as non-immigrant.
If the alien who is on L-1A status files I-485 application concurrently with their employer-sponsored I-140, the risk posed by taking advantage of the portability rule is much higher. That is to say, if the alien changes employer 180 days after the date of filing of I-485 without theirI-140 being approved, the original employer that sponsored the I-140 may withdraw sponsorship, which would practically terminate the I-140 and I-485 application. In this situation, a serious problem may arise if the alien already applied and used an EAD to work for the new employer or applied and used Advanced Parole to re-enter the U.S., because they have already been considered to be abandoning their L-1A status and to be on I-485 pending status. This status does not allow them to stay lawfully in the U.S. as a non-immigrant after the I-485 application is terminated.
Suggestions for L-1A Holders
Considering the benefits and risks presented by Advanced Parole, EAD, and the Portability Rule, we have the following suggestions to L-1A holders who are in various situations:
L-1A holders whose I-140 petitions are not employer-sponsored
For those aliens who are on L-1A status and whose I-140 isnot employer-sponsored, i.e., EB-1A and EB-2 (NIW), it is advisable to keep L-1A non-immigrant status during the I-485 pending period so that even in the case the I-485 application gets denied, the alien can still lawfully stay in the United States.
To maintain their L-1A status, aliens are suggested to use an L-1A visa (obtained through the visa revalidation process or consular process) to re-enter the U.S. after traveling abroad. To safeguard their return to the U.S., aliens should apply for Advanced Parole before their departure. Once they are paroled in, aliens need to resume employment with the same employer for whom they had previously been authorized to work as L-1A non-immigrant. Otherwise they will lose their L-1A status.
Aliens are also suggested not to use an EAD to work for current or new employers since doing so would make them no longer on L-1A status. On the other hand, aliens are encouraged to apply for an EAD along with their I-485 application, which would enable them to work in the case they are laid off by their current employer and their new employer is unwilling to petition for L-1A status on their behalf.
As to the portability rule, aliens under this category do not need the benefit contained therein because their I-140s are not employer sponsored. Therefore, they are free to change employers without being subject to the 180-day time frame and they are still considered to be on their L-1A status as long as a new L-1A petition is filed by their new employer.
L-1A holders whose I-140 petitions are employer-sponsored
For those aliens who are on L-1A status and whose I-140 is employer-sponsored, i.e., EB-1C, it is also advisable to keep L-1A non-immigrant status during the I-485 pending period, which will allow them to lawfully stay in the U.S. even in the case that their I-485 application gets denied.
To maintain their L-1A status, aliens under this category are suggested to utilize Advanced Parole and EADs in the same way as those whose I-140s are not employer-sponsored, as discussed in the section above.
With regard to the portability rule, we strongly suggest that aliens under this category wait for the approval of their I-140 before changing employer. If an alien feels like they really need to change employers before the approval of I-140, we have two suggestions: One is to strictly follow the 180-day rule, i.e., to change employer (if they really feel like to). In other words, to be sure to change employers 180 days after I-485 is filed. The other suggestion is to be sure to ask the new employer to file a new L-1A for them before they leave their current employer, so that they will still have valid L-1A status during the I-485 pending period.
(Updated 10/9/2012 by AG)
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