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 USCIS allowed an alien petitioning for permanent residency on the basis of his/her employment (I-140) to file 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 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 immigrant visa numbers are available to the alien beneficiary.
The basic benefit of applying for employment-based adjustment of status is 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 to this, there are four other major benefits: 1) the alien may simultaneously apply for Advanced Parole; 2) the alien may also apply for an Employment Authorization Document (EAD); 3) the alien whose I-485 is employer-sponsored, e.g., EB-1 (b), EB-1(c), 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 (i.e., the "portability rule"); 4) 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. This is a major advantage utilized by many who would otherwise lose their legal status after the time of filing. Because of the focus of this article, the fourth benefit will not be 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 employers 180 days after the filing of adjustment of status as long as the petition is still pending and the new job is in the same or similar occupational classification as the initial job for which the petition was filed. In the following paragraphs, we will discuss in detail how these noted benefits might affect an 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 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 available for re-entry into the U.S.:
a. 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 into 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 might want to take advantage of Advanced Parole, which will be discussed in the next paragraph.
b. The alien may go back to his/her home country, apply for an H-1/L-1 visa and come back to the US on the H-1/L-1 visa. The alien’s pending I-485 is not considered abandoned.
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 working for his/her H-1 or L-1 sponsoring employer without the need to obtain an EAD. The alien is considered to be in “parolee status” or “I-485 pending status.” However, he/she can still apply for an extension of H-1 or L-1 status, provided that after the alien came back to the US with Advanced Parole, he/she resumed 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 change the alien’s status from parolee or I-485 pending to H-1 or L-1 status. However, if immediately after being paroled in, the alien changes employer, 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 with H-1 or L-1 status may want to apply for EAD, and he/she can do so on conjunction with (or following) the I-485 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, even though they can obtain the non-restrictive EAD.
If an H-1 or L-1 holder decides to file for and obtain the EAD but never uses it to work, he/she still has valid H-1 or L-1 status and is 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 another job or uses the 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 with 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 the U.S. The alien in this situation would be admitted into the U.S. as a parolee and no longer be considered to have H-1 or L-1 status.
3. The Portability Rule
For all those aliens who are beneficiaries 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 changing employers 180 days after the date of filing for I-485 adjustment of status. This has been called the portability rule.
When an alien with 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 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 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 in I-485 pending status. Thus, if his/her I-485 application gets denied, the alien cannot lawfully stay in the U.S. as nonimmigrant.
If the alien with 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 for and used an EAD to work for the new employer or applied for and used Advanced Parole to reenter the U.S. He/she is considered to have abandoned 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.
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:
1. H-1 or L-1 holders whose I-140 is not employer-sponsored
For those aliens who have 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 keep H-1 or L-1 nonimmigrant status during the I-485 pending period so that in the event that their 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 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. Moreover, the alien needs to extend or re-apply for H-1 or L-1 status after coming back to the US with an Advanced Parole.
Aliens are also suggested not to use an 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 an EAD along with their I-485 application, because it allows them to work in the case that they are laid off by that current employer and the 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. Therefore, they are free to change employers without being subject to the 180-day time frame and they are still considered to be with H-1 or L-1 status as long as their new employers file new H-1 or L-1 petitions.
2. H-1 or L-1 holders whose I-140 is employer-sponsored
For those aliens who have 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 H-1 or L-1 nonimmigrant status during the I-485 pending period, or at least during the I-140 pending period. This will keep them in lawful stay in the U.S. even in the event that their I-485 application gets denied or their employer withdraws the I-140 case.
To maintain their H-1 or L-1 status, aliens under this category are also 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 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 switch jobs before the approval of the I-140, we have two 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, ask the new employer to file a new H-1 or L-1 so as to have valid H-1 or L-1 status during the I-485 pending period.
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