1. General introduction

Adjustment of Status is a process whereby an alien who is physically in the United States adjusts his/her non-immigrant status to immigrant status (i.e. becomes a permanent resident). 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, the USCIS published a new interim rule allowing“concurrent filing” of an I-485 adjustment of status application with an I-140 immigration petition (EB-1, EB-2, and EB-3).

The basic benefit of applying for an employment-based adjustment of status is that the alien has reached the final step of getting aGreen Card. Once the application is approved, the alien becomes a permanent resident of the United States. In addition, there are another four major benefits: the first is that the alien may simultaneously apply for Advanced Parole (AP); 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-1B, EB-1C, EB-2 (except under NIW), and EB-3, may change employers 180 days after the filing of an adjustment of status (i.e., the "portability rule"); and 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 will notbe discussed in detail.

Advanced Parole allows the alien to travel abroad during the pending period of his or her adjustment of status application without abandoning the application. The 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 an 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 these benefits might affect an alien's H-1 or L-1 status.

2. Benefits and Risks Presented by Advance Parole, EAD, 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 filed concurrently with the I-140 petition, as long as visa numbers are available in the alien’s preference category. In the I-485 pending period, if an alien wants to travel outside the United States, there are two ways for him/her to legally reenter into the U.S.:

1. The alien may go to a third country or his/her home country to apply for an 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 being rendered unable to come back to the U.S. To safeguard his/her return, the alien might want to take advantage of Advanced Parole, which will be discussed in the next paragraph.

2. The alien is entitled to apply for Advanced Parole (to travel abroad) as a benefit associated with an adjustment of status application. Once approved, Advanced Parole allows the alien to travel abroad and reenter into 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 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 employers, he/she may no longer have valid H-1 or L-1 nonimmigrant status, even though he/she can still lawfully stay in the U.S. during the I-485 pending period. Thus, if the alien's I-485 application is denied, he/she may not be able to lawfully stay in the U.S. as a nonimmigrant.

2. EAD

For various reasons, an alien in H-1 or L-1 status may want to apply for an EAD, and he/she can do so along with the I-485 application either after his/her I-140 is approved or filed concurrently with the I-140 application. However, for the 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, even though their EAD technically does not restrict their employment.

If an H-1 or L-1 holder decides to file for and obtain the 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; if the alien uses the EAD to take on another job or uses the EAD to work for the current employer, he/she would no longer be considered to be maintaining H-1 or L-1 status. Therefore, if an alien on H-1 or L-1 status obtains an EAD and then goes to work for another employer or uses it to work for his/her current employer while waiting for the completion of her/his adjustment of status application, that action would effectively terminate the H-1 or L-1 status of the beneficiary and 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 a parolee and would no longer be considered to be on 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 valid dates of the H-1 or L-1 petition approval.

3. The Portability Rule

For all those aliens who are beneficiaries of (or applicants for) employer-sponsored I-140s, namely, EB-1B (Outstanding Researcher or Professor), EB-1C, EB-2 (except NIW) and all EB-3, current immigration law allows changing employers 180 days after the FILING DATE of a Form I-485 adjustment of status. (67 FR 49561) This has been called the “portability rule”.

If the alien who is on 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 (i.e. he/she is allowed to change employers 180 days after the date of filing Form I-485). In this situation, if the new employer petitions for H-1 or L-1 status for the alien, he/she will acquire a 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 H-1 or L-1 for the alien and the alien applies for(an adjustment of status?) and 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 of I-485 without having his/her I-140 being 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 and used EAD to work for the new employer or applied and used Advanced Parole to reenter into the U.S., because he/she has already been considered to be abandoning his/her H-1 or L-1 status and to be on I-485 pending status, which does not allow him/her to stay lawfully in the U.S. as a nonimmigrant after the I-485 application is terminated.

3. Suggestions to H-1 or L-1 holders

Facing 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 who are in various situations:

1. H-1 or L-1 holders whose I-140s are not employer-sponsored

For those aliens who are on H-1 or L-1 status and whose I-140 are not employer-sponsored, i.e., EB-1A and EB-2 (NIW), it is advisable to keep 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 H-1 or L-1 visas 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 H-1 or L-1 nonimmigrant. Otherwise they will lose their H-1 or L-1 status.

It is also suggested that aliens not use their EAD to work for current or new employers since doing so would make them no longer in H-1 or L-1 status. On the other hand, aliens are encouraged to apply for EAD along with an I-485 application, which would enable them to work in the case that 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 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 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-140s are employer-sponsored

For those aliens who are on H-1 or L-1 status and whose I-140 are employer-sponsored, i.e., EB-1B, EB-2 (except NIW), and EB-3, it is also advisable to keep H-1 or L-1 nonimmigrant status during the I-485 pending period, which would allow them to lawfully stay in the U.S. even in the case that their I-485 applications gets denied.

To maintain their H-1 or L-1 status, aliens under this category are suggested to utilize Advanced Parole and EAD 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 that aliens under this category wait for the approval of their I-140 before changing employers. If an alien feels that he/she really needs to change employers before the approval of the I-140, we have two suggestions. First, to make sure that at least 180 days have 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. Secondly,we advise to always ask the new employer to file a new H-1 or L-1 for them before the alien leaves the current employer, so as to have valid H-1 or L-1 status during the I-485 pending period.