We have received many inquiries regarding the impact of various issues related to I-485 applications on those with H-1B status and have attempted to alleviate any questions or concerns regarding this topic here. For general information on Adjustment of Status petitions click here or visit the USCIS web page.
Impact of travel outside the United States during a pending Adjustment of Status
Oftentimes circumstances arise where an alien must travel outside the United States. If a traveling nonimmigrant has a pending Adjustment of Status (AOS) petition (Form I-485), it is important they understand how travelling outside the U.S. could jeopardize their petition. Additionally, H-1B workers should understand specifically what could happen in their situation if they need to travel outside of the U.S. while their AOS petition is pending.
An AOS petition is an application filed by an alien who is physically in the U.S. to adjust their nonimmigrant status to permanent resident, or immigrant, status. This is the final step in receiving a green card. When an alien files an AOS petition, there is a lengthy process the USCIS has to go through before they can adjudicate that petition. While this process is ongoing and an alien’s petition is pending, certain actions taken during this time period may lead the USCIS to believe that the alien has abandoned their application. As a general rule, these actions include failure to respond to USCIS requests for evidence (RFE), failure to appear for scheduled interviews, failure to appear for fingerprints/biometrics, and traveling outside the U.S. without an Advanced Parole. Once the USCIS considers the application abandoned, the petitioner will need to maintain a valid non-immigrant status in order to stay in the U.S.
Therefore, an alien with a pending AOS application who needs to travel outside the country for any business or personal reason must apply for and be granted Advanced Parole (AP) before leaving the U.S.; otherwise the alien will risk “abandoning”his/her AOS application. Normally, any nonimmigrant entering the United States must be in possession of some kind of valid visa to make it through the inspection point. But AP is a document that allows certain aliens to re-enter the United States after travelling abroad without having a valid visa. And, the benefit associated with an AOS application in this situation is that theI-485 application will not be considered abandoned when an AP holding alien leaves the country.
Benefits and Risks of Travel under H-1B
The situation is different for H-1B status holders. Nonimmigrants working in the U.S. under valid H-1B status that have pending AOS applications do not need to apply for AP to return to the U.S. They can travel abroad and maintain their AOS petition when they return home, as long as they meet certain conditions.
The H-1B nonimmigrant must be in possession of valid H-1B status in the United States before they leave to travel abroad. When they do leave, they do not have to apply for AP. If they already have a valid H-1B entry visa on their passport then they will be able to re-enter the country without needing further travel documents. If an H-1B nonimmigrant does not have a valid H-1B entry visa on their passport, they may apply for an H-1B visa at a U.S. consulate while abroad that will allow them to re-enter the United States upon their return. In both cases, after doing this they must return to work for the same H-1B sponsoring employer where their H-1B status was based before they left the U.S. Therefore, when they come back to the U.S. to work for that employer, their H-1B status remains valid and their AOS application is preserved. In other words, an alien in possession of valid H-1B status before they travel does not need to file for AP before they leave for the U.S. in order to maintain their AOS application.
The H-1B visa is a “dual intent” visa, meaning that those non-immigrants in H-1B status may apply for an H-1B visa in the U.S. Consular Office abroad and their visa application will not be affected by previously shown immigrant intent. Various visas such as F, B, or J do not allow the alien to have immigrant intent. Filing an I-485 shows immigrant intent. B, F, and J holders who file an AOS applicationwill have a very difficult time applying for a B, F, or J visa from a U.S. Consular Office abroad. However, since H-1B is a dual intent visa, I-485 filing does not influence any future H-1B visasapplied for at a U.S. Consular Office abroad. Unlike other visas, where showing immigrant intent can cause issues in visa applications or at U.S. Consular Offices abroad, H-1B holders can apply for AOS and travel outside the country without any concerns about their H-1B visa applications. For more information on H-1B visas and dual intent, please click here.
For example, Mr. Gupta is a valid H-1B status holder with a pending I-485 who is going abroad to India. He does not have an AP before his departure and does not have an H-1B visa stamp on his passport. Mr. Gupta applies for his H-1B visa at a U.S. consulate in India and returns to the U.S. with that H-1B visa. As the H-1B visa program allows dual intent, his AOS application will not affect his chance to get an H-1B visa from a U.S. consulate in India. If Mr. Gupta works for this H-1B sponsoring employer, his I-485 application is preserved and he keeps his H-1B status.
Or, say Mr. Gupta is a valid H-1B status holder and does have a valid H-1B visa stamp in his passport. He may simply travel to India and return to the United States using his H-1B visa, without having to be granted AP before leaving the country or apply for any kind of visa at a U.S. consulate abroad.
If an alien has H-1B status before they travel and uses an AP to re-enter the country when they return, they may also continue to work for the same employer that filed their H-1B petition. When they use AP to re-enter the country, they are technically no longer of H-1B status. They may resume their H-1B status upon their return by filing an H-1B extension petition or an H-1B transfer petition. Again, their AOS application in this situation will not be considered abandoned.
Therefore, aliens are advised to use H-1 visas to re-enter the country after traveling abroad if possible. To be safe, aliens should apply for AP and get it before their departure as a back-up plan in case something goes wrong with their H-1B visa application such as delays due to a security check. They may resume employment with the same employer upon their return and apply for an H-1B extension or transfer petition.
Impact of EAD on AOS Petitions and Travel outside the United States
For various reasons, an alien in H-1B status might want to apply for an Employment Authorization Document (EAD). An EAD, commonly known as a work permit, authorizes an alien to work in the U.S. for a specific period of time, usually one year. H-1B status holders do not need to obtain an EAD to work legally in the U.S., but if they do obtain an EAD it does not affect their H-1B status. The only way possessing an EAD would invalidate H-1B status is if the alien chooses to use an EAD rather thanhis/her H-1B status towork in the United States. If an alien on H-1B status obtains an EAD and then goes to work for another employer, or uses it to work for their current employer while waiting for the completion of their AOS application, that action would effectively terminate the alien’s H-1B status. Now, they would have to file for AP to travel abroad and successfully re-enter the United States.
Conversely, remember that an H-1B holder who travels out of the country and returns on an H-1B visa or AP is authorized to continue working for their H-1B employer. They would not be required to obtain an EAD to work for their same employer.
Aliens with H-1B status are advised to not use their EAD to work for current or new employers since doing so would make them no longer in H-1B status. On the other hand, aliens are encouraged to apply for an EAD along with their I-485 AOS petition, which would enable them to work in case they are laid off by their current employer and their new employer is unwilling to petition for H-1B status for them.
For more information on EADs click here or visit the USCIS web page.
H-1B Visa Homepage
Articles and News on H-1B
If you would like more information on traveling while on H-1B status, please refer to this USCIS memo.
Author:Emily Johnson (email@example.com)