I. General introduction
Adjustment of Status is an
application filed by an alien who is physically in the United
States to adjust his/her non-immigrant status or no status at
all to immigrant status, i.e. permanent resident status. In the
past, the INS allowed an alien to file I-485 adjustment of status
application only after his or her immigration petition was approved.
However, effective July 31, 2002, the INS published a new interim
rule allowing the 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 employment-based adjustment of status is that the alien has
reached the final step of getting the green card. Once the application
is approved, the alien becomes permanent resident in the United
States. In addition, there are other four major benefits: the
first is that the alien may simultaneously apply for Advanced
Parole; the second is that the alien may also apply for 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 employer six months after the
filing of 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 focuses of this article,
the fourth benefit won't be discussed in details.
The Advanced Parole allows
the alien to travel abroad during the pending period of his or
her adjustment of status application without abandoning such 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 six months 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 details how those
noted benefits might affect alien's H-1 or L-1 status.
II. 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 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 INS to abandon his/her
adjustment of status application. (8 U.S.C. §245(a)(4)(ii)(C))
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.
(8 U.S.C. §245(a)(4)(ii)(C)) However, in this scenario,
the alien faces the risk of his/her visa application being denied
and thus cannot come back to the U.S. To safeguard his/her return
to the U.S., the alien might want to take advantage of Advanced
Parole, which will be discussed in the next paragraph.
c. The alien is entitled
to apply for Advanced Parole as benefit associated with adjustment
of status application. Once approved, the 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 into the U.S. on H-1 or L-1 status if he/she travels
abroad in the future. (INS Adjudicator's Field Manual, Chapter
23)
However, if after being paroled in, the alien changes employer
that sponsored his/her original H-1 or L-1 status, he/she may
no longer has 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 nonimmigrant.
2. EAD
For various reasons,
an alien on 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 on the 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 they can obtain the
non-restrictive EAD. (INS Adjudicator's Field Manual, Chapter
23)
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; only if the alien uses the EAD to take on another
job or use EAD to work for the current employer, would he/she
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 go to
work for another employer or use 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 parolee and no longer be considered as on H-1 or L-1 status.
(INS Adjudicator's Field Manual, Chapter 23)
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. (INS Adjudicator's
Field Manual, Chapter 23)
3. The Portability
Rule
For all those aliens
who are beneficiaries (or applicants) of 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 allows
them to change employers 180 days after the DATE of filing of
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 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 of I-485. In this situation, if the new employer
petitions H-1 or L-1 status for the alien, he/she will be on new
H-1 or L-1 status, which will keep him/her stay lawfully in the
U.S. as 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 and uses 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 on 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
on H-1 or L-1 status files I-485 application concurrently with
his/her employer-sponsored I-140, the risk stemmed from 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, 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 nonimmigrant after the
I-485 application is terminated.
III. 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-140 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-1(a) and EB-2 (NIW), it is advisable to keep their H-1
or L-1 nonimmigrant status during the I-485 pending period so
that even in the case the I-485 application gets denied, they
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 visa (obtained
through 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 H-1 or L-1 nonimmigrant, otherwise they will lose their
H-1 or L-1 status.
Aliens are also suggested
not to use EAD to work for current or new employer since doing
so would make them no longer on H-1 or L-1 status. On the other
hand, aliens are encouraged to apply for EAD along with I-485
application, which would enable them to work in the case they
are laid off by current employer and the new employer is unwilling
to petition H-1 or L-1 for them.
As to the portability
rule, aliens under this category do not need the benefit contained
therein because of the nature of their I-140 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-140 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-1(b), EB-2 (except NIW), and EB-3, it is also advisable
to keep their H-1 or L-1 nonimmigrant status during the I-485
pending period, which would keep them lawfully stay in the U.S.
even in the case their I-485 applications get 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-140 are
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 the aliens feel like they really need to do so before the approval
of I-140, there are two suggestions. One is to strictly follow
the 180-day rule, i.e., to change employer (if they really feel
like to) 180 days after I-485 is filed. The other is always ask
new employer to file new H-1 or L-1 for them before they leave
current employer, so that they have valid H-1 or L-1 status during
the I-485 pending period.
