I. General introduction
Adjustment of Status is a process whereby an alien who is physically in the United States adjusts his/her non-immigrant status (or lack of status) to immigrant status, i.e. permanent resident status. In the past, the INS (now called the USCIS) allowed an alien petitioning for permanent residency on the basis of his/her employment (I-140) to file an I-485 adjustment of status application only after his or her immigration petition was approved. However, effective July 31, 2002, a new interim rule 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).
Applying for employment-based adjustment of status means that the alien has reached the final step of getting a Green Card. Once the application is approved, the alien becomes a permanent resident in the United States. In addition, there another four major benefits to submitting an application. The first is that the alien may simultaneously apply for Advanced Parole. The second is that the alien may also apply for an Employment Authorization Document (EAD). The third is that the alien whose I-485 is employer-sponsored, e.g., EB-1(b), EB-1(c), EB-2 (except under NIW), and EB-3, may change employers 180 days or longer after filing for adjustment of status or the approval of the I-140 petition, whichever is later (i.e., the "portability rule"). The fourth is that applying for employment-based adjustment of status gives the alien legal pending status to stay in the U.S. lawfully while waiting for the adjudication of his/her case, which is a major advantage utilized by many who don't have legal status at the time of filing. Because of the focus of this article, the fourth benefit won't be discussed in detail.
Advanced Parole allows an alien to travel abroad during the pending period of his or her adjustment of status application without abandoning such application. Employment Authorization (EAD) allows the alien to work for any employer in the United States during the pending period of his or her adjustment of status application. The portability rule allows the alien whose I-485 is employer-sponsored to change employer 180 days after the filing of adjustment of status, as long as the petition is stilling pending and the new job is in the same or similar occupational classification as the job for which the petition was filed. In the following paragraphs, we will discuss in detail how those noted benefits might affect an alien's H-1 or L-1 status.
II. Benefits and risks presented by Advance Parole, Employment Authorization, and the Portability Rule
1. Advanced Parole
An H-1 or L-1 status holder may submit an I-485 application for adjustment of status after his/her I-140 immigration petition is approved or concurrently with the I-140 petition. In the I-485 pending period, if he/she wants to travel outside the United States, there are three options for him/her to reenter into the U.S.:
a. The alien may apply for a visa revalidation from the Department of State if he/she has an original H-1 or L-1 visa that is valid for 60 days or less; or has 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 alien is not considered by the USCIS to have abandoned his/her adjustment of status application.
b. The alien may go to a third country or his/her home country to apply for an H-1 or L-1 visa if he/she has never gotten an original H-1 or L-1 visa. Once the visa is issued, the alien can use it to come back to the U.S. with his/her adjustment of status application not being affected. However, in this scenario, the alien faces the risk of his/her visa application being denied and thus the inability to come back to the U.S. To safeguard his/her return to the U.S., the alien should take advantage of Advanced Parole, which will be discussed in the next paragraph.
c. The alien is entitled to apply for Advanced Parole as a benefit associated with an adjustment of status application. Once approved, the Advanced Parole allows the alien to travel abroad and reenter the U.S. After being paroled in, the alien can still keep his/her H-1 or L-1 status, as the case may be, in the sense that he/she can still apply for an extension of H-1 or L-1 status, provided the alien resumes employment with the same employer for whom he/she had previously been authorized to work as an H-1 or L-1 nonimmigrant. In this scenario, the approval of that extension would enable the alien to reenter into the U.S. on H-1 or L-1 status if he/she travels abroad in the future.
However, if after being paroled in the alien changes employer, he/she may no longer have valid H-1 or L-1 nonimmigrant status. He/she can still lawfully stay in the U.S. during the I-485 pending period, but, if the alien's I-485 application is denied, he/she may not be able to lawfully remain in the U.S. as nonimmigrant.
2. Employment Authorization (EAD)
For various reasons, an alien in H-1 or L-1 status may want to apply for EAD, and he/she can do so along with the I-485 application either after his/her I-140 is approved or concurrently with I-140 application. However, for purposes of approval of the I-485, those who are in H-1 or L-1 status and whose adjustment of status applications are employer-sponsored are required to prove their intent to work for the petitioning employer.
If an H-1 or L-1 holder obtains an EAD but never uses it to work, he/she is still in valid H-1 or L-1 status and able to extend the H-1 or L-1 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 work for their current employer or to take another job would he/she no longer be considered to be maintaining H-1 or L-1 status. In this situation, he/she would have to file for advance parole to travel abroad and reenter into the U.S. The alien in this situation would be admitted into the U.S. as parolee and no longer be considered to be in H-1 or L-1 status.
On the other hand, an H-1 or L-1 holder who travels out of the United States and returns on advance parole is authorized to continue working for the petitioning H-1 or L-1 employer. He/she would not be required to obtain an EAD to work for this same employer, within the validity dates of the H-1 or L-1 petition approval.
3. The Portability Rule
For all those aliens who are applicants for employer-sponsored I-140s, namely, EB-1(b) (Outstanding Researcher or Professor), EB-1(c), EB-2 (except NIW) and all EB-3, current immigration law allow changing employers 180 days after the date of filing for I-485 adjustment of status. (67 FR 49561) This has been called the portability rule.
If the alien who is in H-1 or L-1 status files an I-485 application after his/her employer-sponsored I-140 is approved, he/she can take advantage of the portability rule and change employers after 180 days have passed since the date of filing the I-485. In this situation, if the new employer petitions for H-1 or L-1 status for the alien, he/she will acquire new H-1 or L-1 status, which will maintain his/her lawful stay in the U.S. as a nonimmigrant even if the I-485 application is denied. However, if the new employer does not petition for an H-1 or L-1 for the alien and the alien uses an EAD to work for the new employer, he/she is not considered to be maintaining H-1 or L-1 status. Rather, he/she is considered to be in I-485 pending status. Thus, if his/her I-485 application gets denied, the alien cannot stay lawfully in the U.S. as nonimmigrant.
If the alien who is in H-1 or L-1 status files an I-485 application concurrently with his/her 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 an I-485 and the I-140 has not yet been approved, the original employer that sponsored his/her 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 for and used an EAD to work for the new employer or applied for and used Advanced Parole to reenter into the U.S.
III. Suggestions for H-1 and L-1 holders
Considering the benefits and risks presented by Advanced Parole, EAD, and the Portability Rule, we have the following suggestions to H-1 and L-1 holders:
1. H-1 or L-1 holders whose I-140 is not employer-sponsored
For those aliens who are in H-1 or L-1 status and whose I-140 is not employer-sponsored, i.e., EB-1(a) and EB-2 (NIW), it is advisable to maintain H-1 or L-1 nonimmigrant status during the I-485 pending period so that, even in the event that an I-485 application gets denied, the alien can still lawfully stay in the United States.
To maintain their H-1 or L-1 status, aliens are suggested to use an H-1 or L-1 visa (obtained through the visa revalidation process or consular process) to reenter into 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 an H-1 or L-1 nonimmigrant. Otherwise they will lose their H-1 or L-1 status.
Aliens are also suggested not to use an EAD to work for a current or new employer, since doing so would make them out of H-1 or L-1 status. However, aliens are encouraged to apply for an EAD along with their I-485 application; this enables them to work in the case they are laid off by their current employer and their new employer is unwilling to petition for H-1 or L-1 status for them.
As for the portability rule, aliens under this category do not need the benefit contained therein because their I-140s are not employer-sponsored. They are free to change employers without being subject to the 180-day time frame and they are still considered to be on their H-1 or L-1 status as long as new H-1 or L-1 petitions are filed by their new employers.
2. H-1 or L-1 holders whose I-140 is employer-sponsored
For those aliens who are in H-1 or L-1 status and whose I-140 is employer-sponsored, i.e., EB-1(b), EB-2 (except NIW), and EB-3, it is also advisable to maintain H-1 or L-1 nonimmigrant status during the I-485 pending period. This allows them to lawfully stay in the U.S. even in the case that their I-485 application is denied.
To maintain their H-1 or L-1 status, aliens under this category are suggested to utilize Advanced Parole and EAD in the same way as those whose I-140s are not employer-sponsored, as discussed in paragraphs above.
With regard to the portability rule, we strongly suggest aliens under this category wait for the approval of their I-140 before changing employer. If an alien feels that he/she really needs to change employers before the approval of his/her I-140, we have two further suggestions. First, make sure that at least 180 days have actually passed since the filing of the I-485. While the date of actual receipt of the I-485 may be sufficient, it is probably better to wait until 180 days after the Receipt Date printed on the I-797 Receipt Notice. For greater caution it is also best to wait until 180 days after the I-140 is approved. Second, always ask the new employer to file a new H-1 or L-1 before leaving the current employer, so as to have valid H-1 or L-1 status during the I-485 pending period.
What is Advance Parole?
What are the purposes of Advance Parole?
Who is eligible for Advance Parole?
What documents and information are
needed for applying an Advance Parole?
What is the difference between an Advance
Parole and a Re-entry Permit?
Frequently asked questions about Advance
Parole
Attorney's fee and filing fee
Advance Parole Issue in Latest
Z&A Memo
Memo: Be Aware of Abandonment of COS and AOS Applications
Refer this page to a friend
