Adjustment of status (AOS) refers to the process whereby an alien who is physically in the U.S. petitions to change his or her nonimmigrant status to immigrant status. If successful, the alien thereby becomes a permanent resident and obtains a green card.
In the past, aliens were allowed to petition for permanent residency on the basis of their employment, but were constrained by having to obtain approval of their employment-based petition first. Aliens would first have to be the beneficiary of an approved Form I-140 application, and only thereafter could they file an I-485 application. Now, however, USCIS allows “concurrent filing” of an I-485 application for employment- and family-based visas.
Four benefits redound to aliens who apply for an AOS either after or concurrently with an employment-based petition.
Aliens may simultaneously apply for advance parole, which allows them to travel abroad while their AOS applications are pending.
Aliens can apply for an Employment Authorization Document (EAD), which allows them to work for any employer in the U.S., albeit for a finite duration of time, while their AOS applications are pending.
Aliens with employer-sponsored I-485 applications (i.e. EB-1B, EB-1C, EB-2 (except for National Interest Waivers), and EB-3) are permitted to change employers 180 days after the AOS is filed by taking advantage of the "portability rule."
- The portability rule allows aliens with employer-sponsored I-485 applications to change employers 180 days after filing an AOS petition, 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 underlying employment-based petition was filed.
Aliens retain legal status to stay in the U.S. while waiting for the adjudication of their petitions.
Benefits and Risks of Using Advance Parole, EAD, and the Portability Rule
There are pros and cons to using the allowable benefits.
An H-1 or L-1 holder may submit an I-485 application for adjustment of status after his or her I-140 immigration petition is approved or concurrently with the I-140 petition, as long as visa numbers are available in the alien’s preference category. During the I-485 pending period, if an alien wants to travel outside the United States, there are two ways for him or her to legally re-enter the U.S.:
With a visa
-If an alien does not already have a visa stamp in her passport, she may go to a U.S. consulate in her home country or a different country to apply for an H-1 or L-1 visa while she is abroad. Once the visa is issued, she can use it to come back to the U.S. without affecting her AOS application. However, in this scenario, there is always the possibility that her visa application could be denied, which means she will be unable to return to the U.S. To avoid this possibility, the alien may wish to take advantage of advance parole.
With advance parole
- Advance parole allows an alien to re-enter the U.S. without a visa. After being paroled in, the alien can keep her H-1 or L-1 status in the sense that she can still apply for an extension of her H-1 or L-1 status, provided she resumes employment with the same employer she had previously been authorized to work for as an H-1 or L-1 nonimmigrant. If her extension is approved, she’ll be able to re-enter the U.S. in H-1 or L-1 status if she travels abroad again in the future.
Note that if an alien changes employers after being paroled in, 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. If her I-485 application is denied, she will not be able to lawfully stay in the U.S. as a nonimmigrant.
An alien can apply for an EAD along with his I-485 application either after his I-140 is approved or concurrently with the I-140 application. H-1 or L-1 status holders with employer-sponsored AOS applications are required to prove their intent to work for the petitioning employer, even though their EAD technically does not restrict their employment to one employer.
If an H-1 or L-1 holder obtains an EAD but never uses it to work, he will retain valid H-1 or L-1 status and can extend his status as needed up to the maximum allowable time. The mere act of obtaining an EAD does not affect one's status. That said, if the alien uses the EAD to take another job or to work for his current employer, he will no longer be in valid H-1 or L-1 status. Using an EAD while waiting for a decision on an AOS application effectively terminates H-1 or L-1 status, forcing the beneficiary to file for advance parole to travel abroad and re-enter the U.S. In this situation, the alien would be admitted into the U.S. as a parolee and would no longer be considered to be in H-1 or L-1 status.
H-1 or L-1 holders who travel abroad and return to the U.S. using advance parole are allowed to resume working for the petitioning H-1 or L-1 employer, even though their H-1 or L-1 status isn’t valid. An EAD would not be required to work for the same employer, as long as the employment takes place within the validity dates after the H-1 or L-1 petition’s approval.
The Portability Rule
For those aliens who are beneficiaries of employer-sponsored I-140s (i.e. EB-1B, EB-1C, EB-2 (except for National Interest Waivers), and EB-3), current immigration law allows them to change employers 180 days after the filing date of an I-485 petition; the relevant statutory text can be found here. This allowance is referred to as the “portability rule.”
H-1 and L-1 holders who file I-485s after their I-140s are approved are able to take advantage of the portability rule. If, after porting positions, the new employer petitions for H-1 or L-1 status for the alien, she will acquire a new H-1 or L-1 visa, which will allow her to remain lawfully in the U.S. even if her I-485 is ultimately denied. Conversely, if, after porting positions, the new employer does not petition for an H-1 or L-1 visa for the alien, and the alien applies for and uses an EAD to work for the new employer, she will not be maintaining H-1 or L-1 status. Instead, her status is merely I-485 pending status. Thus, if her I-485 application is in the end denied, she will be unable to stay in the U.S. as nonimmigrant.
If an alien in H-1 or L-1 status files an I-485 application concurrently with his employer-sponsored I-140, 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 an I-485 without having his I-140 approved, the original employer that sponsored his I-140 may withdraw sponsorship, which would in effect 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 advance parole to re-enter the U.S., since he is already considered to have abandoned his H-1 or L-1 status and instead is in I-485 pending status. Needless to say, this status won’t permit him to stay lawfully in the U.S. as a nonimmigrant after the I-485 application is terminated.
Suggestions to H-1 or L-1 holders
Given the benefits and risks presented by advance parole, EAD, and the portability rule, we make the following suggestions for H-1 and L-1 holders, depending on whether their I-140 petitions are employer-sponsored.
H-1 or L-1 holders whose I-140s are not employer-sponsored:
For those aliens who are in H-1 or L-1 status and whose I-140s are not employer-sponsored (i.e. EB-1A and NIW), it is advisable to keep H-1 or L-1 nonimmigrant status during the I-485 pending period so that, even in the event their I-485 application is denied, they can still lawfully remain in the United States.
To maintain H-1 or L-1 status, aliens are advised to use H-1 or L-1 visas to re-enter the U.S. after traveling abroad. To safeguard their return to the U.S., aliens should apply for advance parole before their departure. Once back in the U.S., aliens must resume employment with the same employer for whom they had previously been authorized to work as H-1 or L-1 nonimmigrants or else they will lose their H-1 or L-1 status.
Aliens should additionally refrain from using their EADs to work for current or new employers, since doing so would render their H-1 or L-1 status invalid. That said, aliens are encouraged to apply for an EAD along with an I-485 application, which would enable them to work in the event that they are laid off by their current employer or their new employer is unwilling to petition for H-1 or L-1 status for them.
As for the portability rule, there’s no need for the benefit it provides because the I-140s of these types of aliens are not employer-sponsored. Therefore, they are free to change employers without being subject to the 180-day timeframe, and they will retain H-1 or L-1 status as long as new H-1 or L-1 petitions are filed by their new employers.
H-1 or L-1 holders whose I-140s are employer-sponsored:
For those aliens who are in H-1 or L-1 status and whose I-140s are employer-sponsored (i.e. EB-1B, EB-1C, EB-2 (except for NIWs), and EB-3), it’s prudent to keep H-1 or L-1 status during the I-485 pending period, as doing so would allow them to lawfully stay in the U.S. in the event their I-485 applications are ultimately denied.
To maintain H-1 or L-1 status, aliens in this category are advised to use advance parole and EAD in the same way as aliens whose I-140s are not employer-sponsored, as discussed above.
With respect to the portability rule, aliens should wait for their I-140s to be approved before changing employers. If an alien feels that he must change employers before the approval of his I-140, then he ought to prolong changing jobs until 180 days have passed since his I-485 was filed. While the filing date is likely sufficient, it is even better to wait until 180 days after the receipt date printed on the associated Form I-797 Receipt Notice. Waiting until 180 days after the I-140 is approved is the most cautious route to take. Additionally, it’s advisable to request that your new employer file a new H-1 or L-1 application for you before leaving your current employer so that you can retain valid H-1 or L-1 status during the I-485 pending period.
For more detailed information on the H-1B category, including minimum requirements and USCIS policies, refer to the following links:
General H-1B Topics