I. General introduction
Adjustment of Status is a process in which 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, USCIS (previously known as the INS) rules stipulated that an alien petitioning for permanent residency on the basis of her employment (I-140) could only file an I-485 adjustment of status application after her immigration petition had already received approval. However, the USCIS recently 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). This rule has been effective since July 31, 2002.
NOTE that I-140 and I-485 can be filed concurrently only if the immigration visa numbers are available for the alien.
The application for employment-based adjustment of status is the final step in the Green Card process. Once the application is approved, the alien becomes a permanent resident of the United States.
There are four major benefits to filing an adjustment of status application: 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 (except under NIW), 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 status to stay in the U.S. lawfully while waiting for the adjudication of her case, which is a major advantage utilized by many who don't have legal status at the time of filing. Because of the focus of this article, the fourth benefit won't 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 such application. 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 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 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 the adjustment of status procedure either after his/her I-140 immigration petition has been approved or concurrently with the I-140 petition. In either case, while the I-485 application is pending, if she wants to travel outside the United States, there are three options for her to reenter into the U.S.:
a. The alien may apply for a visa revalidation from the Department of State if she has an original H-1 or L-1 visa that is valid for 60 days or less; or has an original visa that has 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 USCIS to have abandoned her adjustment of status application.
b. The alien may go to a third country or her home country to apply for an H-1 or L-1 visa if 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 her adjustment of status application not being affected. However, in this scenario, the alien faces the risk of her visa application being denied and thus the inability to come back to the U.S. To safeguard 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 a benefit associated with an adjustment of status application. Once approved, an Advanced Parole allows the alien to travel abroad and reenter the U.S. After being paroled in, the alien can still keep her H-1 or L-1 status, as the case may be, in the sense that 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 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 she travels abroad in the future.
However, if after being paroled in, the alien changes employer, she will no longer have valid H-1 or L-1 nonimmigrant status, even though 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, she may not be able to lawfully stay in the U.S. under a nonimmigrant status.
For various reasons, an alien in H-1 or L-1 status may want to apply for an EAD. She can do so along with the I-485 application either after the I-140 is approved or concurrently with the I-140 application (provided a visa number is available). However, for I-485 approval, those who are in H-1 or L-1 status and whose adjustment of status applications are employer-sponsored must prove their intent to work for the petitioning employer, even though the EAD itself is non-restrictive.
If an H-1 or L-1 holder decides to file for and obtain the EAD, she will still be 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) even if she chooses not to work. The mere receipt of the EAD does not affect one's status; status is only affected if the alien uses the EAD to take on another job or to work for the current employer. In those cases, she would no longer be considered to be in H-1 or L-1 status. Therefore, if an alien in H-1 or L-1 status with an EAD uses it to work for another employer or to work for her current employer while waiting for the completion of her adjustment of status application, that action would effectively terminate the alien’s H-1 or L-1 status. In this situation, 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 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. 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.
3. The Portability Rule
For 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 affords the ability to change employers 180 days after the DATE of I-485 adjustment of status filing. (67 FR 49561) This has been called the portability rule.
For an alien in H-1 or L-1 status, filing an I-485 application after the employer-sponsored I-140 is approved allows her to take advantage of the portability rule. In other words, she is allowed to change employers 180 days after the I-485 filing date. If the alien chooses to change employers and the new employer petitions for H-1 or L-1 status for the alien, she will acquire new H-1 or L-1 status upon approval. This will enable her to maintain her lawful stay in the U.S. as a nonimmigrant even in the case of an I-485 denial. However, if the new employer does not submit an H-1 or L-1 petition on behalf of the alien, in which case the alien uses an EAD to work for the new employer, she will not be considered to be maintaining H-1 or L-1 status. Rather, she is considered to be in I-485 pending status. Thus, if her I-485 application gets denied, the alien will not be able to stay lawfully in the U.S. as a nonimmigrant.
If an alien in H-1 or L-1 status files the I-485 application concurrently with her employer-sponsored I-140, the risk stemming from taking advantage of the portability rule is much higher. That is to say, if the alien changes employer within 180 days after the date of filing the I-485, without having her I-140 being approved, the original employer that sponsored her I-140 may withdraw sponsorship, which would practically terminate the I-140 and I-485 application. In this situation, serious problems may arise if the alien is already using the EAD to work for the new employer or has used Advanced Parole to reenter into the U.S. This is because she has already been deemed to have abandoned her H-1 or L-1 status and is thus in I-485 pending status, which does not allow 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
Given 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 is not employer-sponsored
For those aliens who are in H-1 or L-1 status and whose I-140 petitions are not employer-sponsored, (i.e., EB-1(a) and NIW EB-2), it is advisable to keep H-1 or L-1 nonimmigrant status during the I-485 pending period so that, even in the event that an I-485 application is denied, the alien will still be able to 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 processing) 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. Otherwise, they will lose their H-1 or L-1 status.
Aliens are also suggested not to use an EAD to work for current or new employers, since doing so would take them out of H-1 or L-1 status. On the other hand, aliens are encouraged to apply for an EAD along with an I-485 application. This would enable them to work in the case that they are laid off by their 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. They are still considered to be in H-1 or L-1 status as long as the new H-1 or L-1 petitions filed by their new employers are in process.
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 petitions 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, as this would allow them to lawfully stay in the U.S. even if their I-485 petition is denied.
To maintain their H-1 or L-1 status, aliens under this category are suggested to utilize Advanced Parole and EAD in the same way as those whose I-140 is not employer-sponsored, as discussed in the 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 the necessity to change employers before receiving approval of her I-140 petition, we have two suggestions. First, please make sure that at least 180 days have actually passed since the I-485 filing. 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 as indicated on the I-797 Receipt Notice. For the greatest caution, it is best to wait until 180 days after the I-140 is actually approved. Second, we suggest that the alien in this situation ask her new employer to file a new H-1 or L-1 before she leaves her current employer. This is to insure the alien’s maintenance of valid H-1 or L-1 status during the I-485 pending period.
For information about the Employment Authorization Document (EAD), please click on one of the following topics below:
Who is eligible for an EAD?
Who does not need the EAD to be employed?
How to apply
Appeal after an application is denied
What is an Interim EAD?
What is the difference between an EAD and Labor Certification?
What are the necessary supporting documents to apply for an EAD?
EAD and a Pending I-485
How much are the attorney fee and the filing fee?
EAD Issues in the Latest Z&A Memo
Frequently asked questions and answers about EAD