Memo: The Impact of Employment-Based I-485s on L Status

So, you’ve enjoyed your time in the U.S. in L-1 status so much you’ve decided to stick around on a permanent basis? Lucky for you, the L-1 is a “dual intent” visa, meaning that it’s permitted for L-1 holders to have immigrant intent, even though the L visa is a nonimmigrant visa. In fact, a specific employment-based immigrant preference category, the EB-1C visa, was created for managers and executives who meet the L-1 standards and are interested in becoming lawful permanent residents. (As we note in our article here, there are, of course, a number of other options for employment- and/or family-based immigration to the U.S. available to L-1 holders.)

Overview: I-140 to I-485

Aliens interested in switching from a temporary, nonimmigrant L-1 visa to a permanent resident green card will have to submit an I-140 petition to U.S. Citizenship and Immigration Services (USCIS). For employment-based immigration, the employer is the petitioner, and so it submits the I-140 on behalf of an alien. Alternatively, aliens can apply for a National Interest Waiver (NIW) or an EB-1A visa on behalf of themselves, without an employer’s sponsorship.

In addition to the underlying I-140 petition, which establishes an alien’s eligibility to immigrate, aliens will also have to submit an I-485 adjustment of status (AOS) petition, which, if approved, officially grants them full permanent resident status, i.e. a green card. AOS is only available to aliens who are physically present in the United States in lawful status.

In the past, USCIS would allow I-140 beneficiaries to file for AOS only after their I-140 petitions were approved. However, since July 31, 2002, USCIS has permitted the concurrent filing of an I-485 and an I-140, provided an immigrant visa number is immediately available to the beneficiary. For more detailed information on concurrent filing, click here.

During the I-140 and/or I-485 Pending Stage

While your I-140 or I-485 are pending, you can take advantage of a number of benefits. In brief, aliens in the I-140 or I-485 pending stage are eligible for the following:

  • Advance parole (AP)

    -AP allows an alien to travel abroad while his AOS application is pending without running the risk of USCIS deeming his application abandoned (and therefore denied).

  • Employment Authorization Document (EAD)

    -An EAD allows an alien to work for any employer in the U.S. during the AOS pending period.

  • An alien whose I-485 is employer-sponsored (i.e. EB-1BEB-1CEB-2, and EB-3 petitions) can change employers as long as the new job is in the same or a similar occupations as the current position, and provided the AOS application has been pending for more than 180 days.

    -This benefit stems from the “portability rule,” and the only condition stipulated is that the new job is in the same or similar occupational classification as the job for which the original petition was filed

  • Aliens enjoy pending status, which allows them to stay in the U.S. lawfully while waiting for their cases’ approval. This is a major advantage utilized by many who do not have legal status at the time of filing.

In what follows, we’ll break down the advantages and disadvantages of AP, EAD, and the portability rule for L-1 holders.

Advance Parole (AP)

AP facilitates an alien’s travel abroad and subsequent re-entry into the U.S. While an I-485 application is pending, if a petitioner wants to travel outside the United States, there are two ways she can thereafter legally re-enter the U.S.:

  1. AP allows aliens to travel abroad and re-enter the U.S. After being “paroled in” to the country using AP, aliens can revert back to valid L-1A status by applying for an extension of their L-1A status. Once back in L-1A status, aliens must resume employment with the same employer for whom they had previously been authorized to work as an L-1A nonimmigrant. In this scenario, the approval of that extension would enable the alien to re-enter the U.S. in L-1A status if they travel abroad in the future.

    • However, if after being paroled in an alien changes employers, he or she may no longer have valid L-1A nonimmigrant status, even though he or she can still lawfully stay in the U.S. during the I-485 pending period. If the alien's I-485 application is denied, he or she will no longer be allowed to lawfully stay in the U.S. as a nonimmigrant. 
  2. The second alternative to AP is visiting a U.S. consulate and applying for an L-1A visa while abroad. This route makes the most sense to aliens who had never beforehand had an L-1A visa. Once the visa is issued, the alien can use it to come back to the U.S. without his AOS application being affected.

    • However, in this scenario, the alien risks his visa application being denied and thus might not be allowed back into the U.S. To safeguard his return to the country, the alien might therefore want to take advantage of AP. It’s therefore recommended to have AP as a back-up option.

Employment Authorization Document (EAD)

For various reasons, aliens in L-1A status may want to apply for an EAD, and they can do so along with their I-485 applications, either after their I-140s are approved or concurrently with their I-140 petitions. However, for the purposes of I-485 approval, L-1A holders whose AOS 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 L-1A holders decide to file for and obtain an EAD but never use the document to work, they are still in valid L-1A status and can extend their L-1As as needed (up to the maximum allowable time). Merely obtaining an EAD does not affect one's status; it is only if an alien uses her EAD to take another job or to work for her current employer that she would no longer be considered to be in L-1A status. Therefore, if an alien in L-1A status obtains an EAD and then goes to work for another employer or uses it to work for his current employer during the AOS pending stage, his L-1A status is effectively terminated. Accordingly, such an alien would have to file for AP to travel abroad and re-enter the U.S. After traveling outside the country, an alien in this situation would be admitted into the U.S. as a parolee and would no longer have valid L-1A status.

Note that an L-1A holder who travels abroad and returns to the U.S. on AP is authorized to continue working for the L-1A petitioning employer. He or she would not be required to obtain an EAD to work for said employer within the validity dates of the L-1A petition approval.

The Portability Rule

Current immigration law allows aliens who are beneficiaries of employer-sponsored I-140s (namely, EB-1B, EB-1C, EB-2 (except NIW), and all EB-3 visas) to change employers 180 days after the date of filing of their I-485s. This allowance is referred to as the portability rule. 

If an L-1A holder files an I-485 application after his employer-sponsored I-140 is approved, he can take advantage of the portability rule and change employers 180 days after the date of filing his I-485. If the new employer petitions for L-1A status for the alien, the alien will obtain a new L-1A status that will maintain his lawful stay in the U.S. as a nonimmigrant, even if the alien’s I-485 application is ultimately denied. However, if the new employer does not petition for an L-1A for the alien and the alien applies for and uses an EAD to work for the new employer, the alien will no longer have valid L-1A status. Rather, the alien is considered to be in I-485 pending status. As such, if said alien’s I-485 application is in the end denied, she can’t lawfully stay in the U.S. as a nonimmigrant.

If an L-1A holder files an I-485 application concurrently with his employer-sponsored I-140 application, the risk posed by taking advantage of the portability rule is much greater. That is to say, if the alien changes employers 180 days after the date of filing the I-485 without having obtained I-140 approval, the original I-140 sponsoring employer may withdraw sponsorship, which would terminate both the I-140 and I-485 applications. 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 AP to re-enter the U.S. because USCIS would consider such an alien to have abandoned her L-1A status and be only in AOS pending status. As noted, I-485 pending status will terminate upon denial of an AOS petition, thereby forcing an alien in this situation to have to leave the U.S. (assuming said alien lacks any other nonimmigrant status).

Suggestions for L-1A Holders

Considering the benefits and risks associated with AP, EAD, and the portability rule, we offer the following suggestions for L-1A holders: 

L-1A holders whose I-140 petitions are not employer-sponsored

For those aliens who are in L-1A status and whose I-140 applications are not employer-sponsored, i.e. EB-1A and EB-2 (NIW) applicants, it is advisable to keep L-1A nonimmigrant status during the I-485 pending period so that even if the I-485 application is denied, the alien can still lawfully stay in the United States. 

Aliens are advised to use an L-1A visa to re-enter the U.S. after traveling abroad. As a contingency, they should apply for AP before their departure. Once back in the country, aliens must resume employment with the same employer for whom they had previously been authorized to work under L-1A status.

Aliens are advised not to use an EAD to work for current or new employers—doing so would nullify their L-1A status. On the other hand, aliens are encouraged to apply for an EAD along with their I-485 applications, which would enable them to work in the event they are laid off by their current employer or their new employer is unwilling to petition for L-1A status on their behalf. This is especially important to do before the new I-140 is approved and while the AOS has been pending for fewer than 180 days.

With respect to the portability rule, L-1A holders whose I-140s aren’t employer-sponsored really don’t need the associated benefit. Therefore, they are free to change employers without being subject to the 180-day timeframe, and they are still considered to be in L-1A status as long as a new L-1A petition is filed by their new employer.

L-1A holders whose I-140 petitions are employer-sponsored

For those aliens who are in L-1A status and whose I-140s are employer-sponsored, e.g., EB-1C applicants, it is advisable to keep L-1A nonimmigrant status during the I-485 pending period, which will allow them to lawfully stay in the U.S. even if their I-485 applications are in the end denied. 

To maintain L-1A status, aliens in this situation should use their AP and EADs in the same way as those whose I-140s are not employer-sponsored, as discussed in the section above. 

With regard to the portability rule, we strongly recommend that aliens whose I-140s are employer-sponsored wait for their I-140 approvals before changing employers. If an alien feels it necessary to change employers before I-140 approval, we have two suggestions:

  1. Strictly adhere to the 180-day rule.

    • In other words, he ought to change employers only after 180 days have elapsed since filing an AOS.
  2. Ask the new employer to file a new L-1A petition for her before she parts ways with her current employer.

    • Doing so would allow such an alien to retain valid L-1A status, assuming the new L petition is approved, during the AOS pending stage.
    • Note, however, that there has to be a certain degree of amicability between the companies. Think practically: would one employer want to continue sponsoring a worker who’s looking to jump ship to a competing company?

For more information on the L-1 category, refer to the following links:

Updated 05/18/2017