When aliens physically present in the U.S. wish to adjust their nonimmigrant status to permanent resident, or immigrant, status, they’re required to submit Form I-485 to U.S. Citizenship and Immigration Services (USCIS). Upon approval of this petition, an alien will be issued a green card and enjoy all the benefits of permanent residency. However, while this application is pending, aliens must adhere to certain rules regulating travel abroad. It’s therefore crucial for nonimmigrant aliens, including H-1B holders, with pending I-485s to understand how traveling outside the U.S. could jeopardize their adjustment of status (AOS) petitions.
Traveling Abroad with a Pending AOS
Adjusting status entails a lengthy adjudication process before USCIS renders a decision. During this period, aliens often find it necessary to travel abroad to tend to family or business matters. They should exercise caution, however, as USCIS considers certain actions while an AOS is pending tantamount to abandoning the application. (Once USCIS considers an application abandoned, the petitioner will need to maintain some valid nonimmigrant status in order to stay in the U.S.) In general, these actions include failure to respond to requests for additional evidence (RFEs), failure to appear for scheduled interviews, failure to appear for biometrics processing, and, most importantly in the context of this article, traveling outside the U.S. without advance parole.
Normally, any nonimmigrant entering the United States must possess some valid visa to make it past the border. Advance parole is a document that allows certain aliens to re-enter the U.S. after traveling abroad without a valid visa. Aliens with advance parole can leave the country without abandoning their AOS and enter the country again without having to obtain a visa.
The upshot: an alien with a pending AOS application who needs to travel outside the country for any reason must apply for and be granted advance parole before leaving the U.S., or else risk “abandoning” his or her AOS application.
Re-entering the Country Using an H-1B Visa
There are particular advance parole rules for H-1B holders with pending AOS applications. H-1B holders can travel abroad and maintain their AOS petition when they return to the U.S. without having obtained advance parole beforehand.
One condition must be satisfied: H-1B holders must be in valid H-1B status before they leave the country. If they already have a valid H-1B entry visa on their passport, then they will be able to re-enter the country without needing additional travel documents. If they do not have a valid H-1B entry visa on their passport, they can apply for an H-1B visa at a U.S. consulate while abroad, which will allow them to re-enter the United States upon their return. In either case, when H-1B holders return, they must continue to work for their H-1B-sponsoring employers, which is the second condition that must be satisfied. This ensures that their H-1B status remains valid and that their AOS application is preserved.
The reason for this allowance stems from the nature of the H-1B. The H-1B visa is a “dual intent” visa, which means that an alien can simultaneously be the beneficiary of the nonimmigrant visa and have immigrant intent. This contrasts with most other nonimmigrant visa categories, including F, B, and J visas, which explicitly require aliens to demonstrate that they do not intend to live permanently in the U.S. Because filing an I-485 demonstrates immigrant intent, F, B, and J holders who submitted an AOS application before traveling abroad would have a very difficult time applying for a nonimmigrant visa from a U.S. consular office. (For more information on H-1B visas and dual intent, refer to 8 CFR 214.2.)
Consider the following examples to help clarify the H-1B and I-485 travel rules.
Irene Gupta is an H-1B holder with a pending I-485 application. She is traveling to her home country, India, to attend a business conference and her nephew’s wedding. Irene does not obtain advance parole before her departure, and she lacks an H-1B visa stamp on her passport. Irene is planning to apply for an H-1B visa stamp at a U.S. consulate in India.
Will Irene be able to re-enter the U.S.?
Because H-1B visas allow dual intent, Irene’s AOS application will not affect her ability to obtain an H-1B visa stamp from the U.S. consulate in India. If Irene continues working for her H-1B-sponsoring employer when she returns to the U.S., her I-485 application will be preserved and her H-1B status will remain valid.
Like Irene, Douglas Patel is a valid H-1B holder. Unlike Irene, Douglas does have a valid H-1B visa stamp in his passport. He’s planning to attend the same business conference as Irene.
Will Douglas be able to leave the U.S. and thereafter return?
Yes. Douglas can travel to India and return to the United States using the H-1B visa already in his passport. He does not need to obtain advance parole before leaving the country or apply for any kind of visa at a U.S. consulate abroad.
Re-entering the Country Using Advance Parole
While an H-1B holder does not need to apply for advance parole before traveling abroad, the option is still available. An issue that arises is that when an H-1B holder uses advance parole to re-enter the country after traveling abroad, said H-1B holder will technically no longer be in valid H-1B status. Despite lacking H-1B status, however, the alien is permitted to continue working for the employer that filed his or her H-1B petition. The alien can subsequently regain H-1B status by filing an H-1B extension or transfer petition. Importantly, this will have no effect on his or her AOS application.
In light of this issue, aliens are advised to use H-1 visas to re-enter the country after traveling abroad if possible. Further, out of an abundance of caution, aliens should also consider obtaining advance parole before their departure as a back-up plan. After all, some issue may transpire when they apply for an H-1B visa at a U.S. consulate, such as a delay due to a security check.
EAD, AOS, and H-1B
For various reasons, an alien in H-1B status might want to apply for an Employment Authorization Document (EAD). An EAD, commonly known as a work permit, designates an alien as eligible to work in the U.S. for a finite period of time, usually one year. Of course, H-1B holders do not need to obtain EADs to work legally in the U.S., and obtaining EADs will not affect their H-1B status.
Using an EAD will affect H-1B status, however, as doing so has the effect of invalidating H-1B status. If an alien in H-1B status obtains an EAD and thereafter goes to work for another employer, or uses an EAD to work for his current employer while waiting for a decision on his AOS application, then the alien is effectively terminating his H-1B. As a result, said alien would have to obtain advance parole in order to travel abroad and successfully re-enter the United States.
Accordingly, aliens with H-1B status are advised not to use their EADs to work for current or new employers. But aliens are encouraged to apply for EADs when they submit their AOS petitions as a safety net of sorts. Having an EAD enables an alien to work in the event she is laid off by her current employer and a new employer is unwilling to petition for an H-1B visa on her behalf.
For more detailed information on the H-1B category, including minimum requirements and USCIS policies, refer to the following links:
General H-1B Topics