An 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 USCIS 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 USCIS published a new 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 an 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 of the United States. In addition, there are four other major benefits: the first is that the alien may simultaneously apply for Advanced Parole; the second is that the alien may also apply for an Employment Authorization Document (EAD); the third is that the alien whose I-485 petition is employer-sponsored, (e.g., EB-1(b), EB-1(c), EB-2 (except under NIW), and EB-3), may change employers six months after the filing of adjustment of status (visa 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. Due to the focus of this article, the fourth benefit won't be discussed in detail.
The Advanced Parole document 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 employer six months after the filing of the adjustment of status application as long as the petition is still 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 detail how those noted benefits might affect the alien's H-1 or L-1 status.
An H-1 or L-1 status holder may submit an I-485 application for adjustment of status either after his/her I-140 immigration petition is approved or concurrently with the his/her I-140 petition. During the I-485 pending period, if the alien wants to travel outside of the United States, there are three options that he/she can use to re-enter the U.S.:
For various reasons, an alien on H-1 or L-1 status may want to apply for an employment authorization document, 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 the approval of the I-485, those who are on 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; although, 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 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 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 on 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 and receive an advance parole document to travel abroad and re-enter into the U.S. The alien in this situation would be admitted into the U.S. as a parolee and no longer be considered as on 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.
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 an 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 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 will be allowed to change employers 180 days after the date the I-485 petition was filed. In this situation, if the new employer petitions for H-1 or L-1 status for the alien, he/she will be on new H-1 or L-1 status, which will allow him/her to stay lawfully 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 applies and uses an EAD to work for the new employer, he/she will not be considered to be maintaining H-1 or L-1 status, rather, he/she will be 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 an I-485 application concurrently with his/her employer-sponsored I-140, the risk stemming from taking advantage of the portability rule is much higher. Therefore, if the alien changes employers 180 days after the date of filing the I-485 petition without having his/her I-140 approved first, the original employer that sponsored his/her I-140 may withdraw sponsorship; thus, practically terminating the I-140 and I-485 application. In this situation, a serious problem may arise if the alien already applied and used an EAD to work for the new employer or applied for and used Advanced Parole to re-enter the U.S., because he/she has already been 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 non-immigrant after the I-485 application is terminated.
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:
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 is 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 an H-1 or L-1 non-immigrant; otherwise they will lose their H-1 or L-1 status.
Aliens are also advised not to use an EAD to work for the current or new employer because doing so would invalidate their H-1 or L-1 status. On the other hand, aliens are encouraged to apply for an EAD along with an I-485 application, which would enable them to work, even if they are laid off by the current employer or the new employer is unwilling to petition for a new H-1 or L-1 for the alien.
As to the portability rule, aliens under this category do not need the benefit contained therein since their I-140 petitions are not employer-sponsored. Therefore, they are free to change employers without being subject to the 180-day time frame and they will still be considered in valid H-1 or L-1 status as long as a new H-1 or L-1 petitions is filed by the new employer.
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 petitions are employer-sponsored, i.e., EB-1(b), EB-2 (except NIW), and EB-3, it is also advised that they maintain valid H-1 or L-1 non-immigrant status during the I-485 pending period, because it will allow them to lawfully stay in the U.S., even in the case that their I-485 applications are 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 advise that aliens under this category wait for the approval of their I-140 before changing employer. If an alien feels that he/she really needs to do so before the approval of the I-140 petition, there are two suggestions. One is to strictly follow the 180-day rule: changing employers (if they really feel like to) 180 days after the I-485 is filed. The other is to always ask the new employer to file a new H-1 or L-1petition for them before they leave the current employer, so that the alien has valid H-1 or L-1 status during the I-485 pending period.
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