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 immigration petition (Form 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, a new interim rule allows the alien to file an I-485, adjustment of status application concurrently with an I-140, immigration petition (EB-1, and EB-2) if the immigrant visa number is immediately available [8 C.F.R. 245.2(a)(2)(i)].
Applying for employment-based adjustment of status means 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, there are four additional major benefits to submitting an application. First, the alien may simultaneously apply for Advanced Parole. Second, the alien may also apply for an Employment Authorization Document (EAD). Third, 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 employers 180 days or longer after filing for adjustment of status (i.e., the "portability rule") [INA 204(a)(1)(F)]. Fourth, is that applying for 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 a valid non-immigrant status at the time of filing or lose a valid non-immigrant status after the filing of AOS. Due to the focus of this article, the fourth benefit won't be discussed in detail.
Advanced Parole allows an alien to travel abroad during the pending period of his or her adjustment of status application, without abandoning such application. Employment Authorization (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 adjustment of status, as long as the new job is in the same or similar occupational classification as the job for which the petition was filed [INA 204(a)(1)(F)]. In the following paragraphs, we will discuss in detail how those noted benefits might affect an alien's H-1 or L-1 status.
II. Benefits and risks presented by Advance Parole, Employment Authorization, 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 if the immigrant visa number is immediately available. In the I-485 pending period, if the alien wants to travel outside the United States, there are three options for him/her to reenter into the U.S. [INA 212(d)(5)(A)]:
2. 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 been issued 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 delayed for a security check or denied, though very unlikely, and thus the inability to come back to the U.S. To safeguard his/her return to the U.S., the alien should take advantage of Advanced Parole, which will be discussed in the next paragraph.
3. 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 re-enter the U.S. After being paroled in, the alien is in a parolee status but may still work for the H-1 employer without the need to obtain or use an EAD if the H-1B approval notice is still valid on its face. The alien will resume his/her H-1 or L-1 status, if he/she applies for an extension of H-1 or L-1 status and gets an approval from the USCIS, 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 when the alien comes back to the US with an Advanced Parole. The approval of that extension would enable the alien to apply for an H-1 or L-1 visa from a US consulate abroad if he/she travels abroad in the future. [8 C.F.R. 245.2(a)(4)(ii)(C)]
However, if after being paroled into the U.S. the alien changes employer immediately without working for his / her H-1 or L-1 sponsoring employer, he/she no longer has valid H-1 or L-1 nonimmigrant status. He/she can still lawfully stay in the U.S. during the I-485 pending period, but if the alien's I-485 application is denied, he/she may not be able to lawfully remain in the U.S. as nonimmigrant.
2. Employment Authorization (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 concurrently with I-140 application. [8 C.F.R. 274a.12(b)]
If an H-1 or L-1 holder obtains an 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 work for their current employer or to take another job would he/she no longer be considered to be maintaining H-1 or L-1 status. In this situation, he/she would have to file for advance parole to travel abroad and re-enter the U.S. The alien in this situation would be admitted into the U.S. as a parolee and no longer be considered to be in 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 validity dates of the H-1 or L-1 petition approval. [8 C.F.R. 245.2(a)(4)(ii)(C)]
3. The Portability Rule
For all those aliens who are applicants for 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 the alien to change employers 180 days after the date of filing Form I-485, adjustment of status. (67 FR 49561) This has been called the Portability Rule.
If the alien who is in H-1 or L-1 status files an I-485 application after his/her employer-sponsored I-140 is approved, the alien can take advantage of the portability rule and change employers after 180 days have passed since 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 non-immigrant, 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 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. [INA 214 (n)(1), (n)(2)(A)-(C)]
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 I-485 filing date and the I-140 has not yet been approved, the original employer that sponsored his/her I-140 may withdraw sponsorship, which would terminate the I-140 and I-485 application. In this situation, a serious problem may arise if the alien has already applied for and used an EAD to work for the new employer or applied for and used Advanced Parole to re-enter into the U.S.
III. Suggestions for H-1 and L-1 holders
Considering 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 are in 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 maintain 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 advised to use an H-1 or L-1 visa (obtained through the visa revalidation process or consular process) to re-enter the U.S. after traveling abroad. To safeguard their return to the U.S., aliens should apply for and get an Advanced Parole before their departure as a backup. 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. Otherwise, they will lose their H-1 or L-1 status.
Aliens are also advised not to use an EAD to work for a current or new employer, since doing so would invalidate their H-1 or L-1 status. However, aliens are encouraged to apply for an EAD along with their I-485 application; this enables them to work in the case 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 for the portability rule, aliens under NIW and EB-1(a) do not need the benefit contained therein because their I-140s are not employer-sponsored. 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 status as long as new H-1 petitions are filed by their new employers.
2. H-1 or L-1 holders whose I-140 is employer-sponsored
For those aliens who are in H-1 or L-1 status and whose I-140 is employer-sponsored, i.e., EB-1(b), EB-2 (except NIW), and EB-3, it is also advisable to maintain H-1 or L-1 nonimmigrant status during the I-485 pending period. This allows them to lawfully stay in the U.S. even in the case that their I-485 application is denied.
To maintain their H-1 or L-1 status, aliens under this category are encouraged to use Advanced Parole and an EAD in the same way as those whose I-140s are not employer-sponsored, as discussed in the paragraphs above.
With regard to the portability rule, we strongly advise aliens under this category to wait for the approval of their I-140 before changing employer. If an alien feels that he/she really needs to change employers before the approval of his/her I-140, we have two further 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 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, always ask the new employer to file a new H-1 before leaving the current employer, so as to have valid H-1 status during the I-485 pending period.
For more information on Advance Parole, please click on the following links:
What is Advance Parole?
What are the purposes of Advance Parole?
Who is eligible for Advance Parole?
What documents and information are
needed for applying an Advance Parole?
What is the difference between an Advance
Parole and a Re-entry Permit?
Frequently asked questions about Advance
Attorney's fee and filing fee
Advance Parole Issue in Latest
Memo: Be Aware of Abandonment of COS and AOS Applications
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