In order to help you gain a comprehensive understanding of the issues H-1B holders might encounter when filing an I-140 and/or an I-485, we have compiled this list of commonly asked questions. This FAQ also discusses issues related to Employment Authorization Documents (EADs), advance parole, and traveling while an I-485 is pending, among others.
Q: Is there any consequence to filing multiple petitions concurrently?
A: No, since each petition is adjudicated independently.
Q: My spouse is in H-4 status and will apply for an I-485 with me. Will this affect his H-4 status?
Q: I am in H-1 status and plan to file an I-140 soon. I’m also planning on going to school and changing to F-1 status in about a year. Will my I-140 application affect my future application for F-1 status?
A: Yes, because you demonstrate immigrant intent through your I-140 application. There is a high chance your new F-1 visa or change of status application will be rejected because of the immigrant intent that you showed with your I-140. F-1 visas are reserved only for those with nonimmigrant intent.
Q: My spouse is in H-4 status and will apply for an I-485. Will this affect her future application for an F-1?
A: Yes. Filing an I-485 demonstrates an alien’s immigrant intent. Because F-1 visas are reserved for those with nonimmigrant intent only, there is a high chance her new F-1 visa application or change of status petition will be denied.
Q: I am the beneficiary of an H-1B sponsored by a university. Will I-140 and I-485 applications affect a potential future application to work for a company under an H-1B?
A: No. However, when you apply for another H-1B to work for a company in the future, you will be subject to the H-1B annual cap if you have not already been subject to the cap within the past six years.
Q: I’m an H-1B holder. Will I-140 and I-485 applications affect any future H-1B transfer application?
Q: I am in H-1B status and will apply for an NIW, I-485, EAD, and advance parole soon. Am I allowed to use my EAD to work after it is approved?
A: Yes, you may use the EAD to work for your current employer or any other employer. However, if you use the EAD, you may be considered to have abandoned your H-1B status, and will be considered in I-485 pending status. This may impact your future extension or transfer of H-1B status. If you use an EAD and your I-485 is eventually denied, you will no longer retain a valid nonimmigrant status because you will have lost H-1B status by using your EAD.
Q: I am in H-1B status and will apply for an I-485, EAD, and advance parole. Should I use my EAD to work, or continue using my H-1B?
A: You can use your EAD, but you should evaluate the risk you’re assuming first. If you use an EAD to work, you may lose your H-1B status. If you do lose your H-1B status and your I-485 is eventually rejected, you will be out of valid status immediately and will need to leave the U.S. To reduce that risk, we suggest you avoid using your EAD before your I-140 is approved.
Q: I am in H-1B status and will apply for an I-485. If my I-485 is denied, will it affect my H-1B?
A: No, a denied I-485 will not have any effect on your H-1B status if you don’t use your EAD or advance parole.
Q: I am in H-1B status. If I use EAD or advance parole while my I-485 is pending, will I retain valid H-1B status?
A: No. You are in I-485 pending status or parolee status.
Q: My H-1B application is pending. If I submit an I-485 and/or an EAD application, will that influence my H-1B application?
Q: I am in H-1B status and have applied for an I-140. Can I travel outside the U.S.?
A: Yes. You can leave the U.S.
Q: How do I come back after traveling abroad in H-1B status while my immigration petitions are pending?
A: You will need to apply for an H-1B visa at a U.S. consulate abroad.
Q: Does my I-140 application affect my chances of getting an H-1 visa?
A: No. The H-1 category allows "dual intent," which means that a person may choose to return to his or her home country or to move on to permanent residency status in the U.S. without suffering any consequences. Filing an I-140 shows an alien’s immigrant intent, but it won’t influence your future application for an H-1B visa.
Q: I am in H-1B status and have applied for an I-140 and I-485. I have a valid H-1B visa. Am I allowed to leave the U.S. and re-enter the country using my H-1B visa?
Q: I am in H-1B status and plan to apply for an I-140. What applications or statuses will my I-140 affect?
A: Your I-140 application will affect the following:
Your entry into the U.S. on an F-1, F-2, B-1, B-2, J-1, or J-2 visa.
Your ability to change your status in the U.S. to F-1, F-2 B-1, B-2, J-1, or J-2.
In other words, demonstrating your immigrant intent through an I-140 petition may affect all nonimmigrant visa applications other than H and L. None of the classifications above allows a petitioning alien to have immigrant intent.
Q: I am in H-1B status and plan to apply for an adjustment of status. What applications or statuses will my I-485 affect?
A: See the above question.
Q: OK, let me ask it another way. What will an I-140 petition not affect?
A: An I-140 will not influence your current H-1B status, any applications to transfer your current H-1B status, or applications for an H-1B visa at a U.S. consulate abroad. Further, an I-140 won’t impact other visas or statuses that allow for dual intent, including L-1, O-1 and P visas.
Q: What will an I-485 not affect?
A: See the above question.
Q: I am in H-1B status and plan to apply for an I-485, EAD, and advance parole. If I use EAD or advance parole, what will my status be?
A: You will be in I-485 pending status if you use your EAD, and/or parolee status if you use advance parole for re-entry.
Q: Is parolee status a valid nonimmigrant status?
A: No. It merely allows an alien to legally remain in the U.S., pending the adjudication of his or her I-485 application.
Q: If I use an EAD or advance parole and my I-485 is denied, can I stay in the U.S. legally?
A: No. You will be out of status. When you use EAD or advance parole, you lose your H-1B status. If your I-485 is denied, you will be out of status and will have to leave the U.S. However, you may have a chance to change back to H-1B status in the U.S. after using advance parole.
Q: I am in H-1B status and would like to file an I-140 and I-485. What do you suggest that I do as far as my status is concerned?
A: We suggest that you keep your H-1B status at least until your I-140 is approved. If your I-140 immigration petition is sponsored by your employer, it is best not to change jobs (if you were thinking of doing so) until your I-485 application has been pending for 180 days.
Before you travel abroad, you should apply for advance parole as a precaution. You can bring the advance parole with you, but you should try to apply for an H-1B visa at a U.S. consulate first. If you get an H-1B visa, use it to re-enter the U.S. If your H-1B visa application is denied, you can use advance parole to re-enter the U.S. Thus, your advance parole is in effect a back-up that will let you return to the U.S. in case you cannot obtain an H-1B visa for whatever reason.
Q: I am in H-1B status and plan to file an I-485. If I travel outside the U.S. without advance parole, is my I-485 application abandoned?
A: No. As a general rule, an alien who has filed for adjustment of status in the U.S. needs to apply for advanced parole and use it to come back to the U.S. in order to keep his or her adjustment of status pending. Conversely, if one travels abroad while his adjustment of status is pending without advance parole, his adjustment of status is considered abandoned even if he comes back to the U.S. with a valid visa.
However, unlike other visa types, aliens in H-1B status who have pending I-485 applications do not need to apply for advance parole to travel abroad if they fulfill certain conditions. As long as the H-1B visa holder maintains his or her H-1B status while outside of the U.S., he or she can try to apply for an H-1B visa to re-enter the U.S. and continue working for the H-1B-sponsoring employer after traveling abroad. When the alien comes back with a valid H-1B visa to work for the H-1B-sponsoring employer, he or she is not considered to be in parolee status, but rather is still in H-1B status, and his or her I-485 is preserved. An alien in this situation does not need an EAD to work. Furthermore, such an alien can still apply for an extension of H-1B status or to transfer to a different employer.
Q: I am in H-1B status and will file an I-485. If I travel outside the U.S. and come back using advance parole, can I resume working for my H-1B-sponsoring employer?
A: Yes. Your H-1B employment authorization will still be valid although you are in parolee status.
Q: With regard to the above question, will I need an EAD to resume working for my H-1B-sponsoring employer?
A: No, U.S. Citizenship and Immigration Services (USCIS) issued a special memo indicating that an alien does not need an EAD to work for his or her H-1B sponsoring employer after he or she travels outside the U.S. and re-enters the U.S. on advance parole.
Q: With regard to the above question, what would my status be?
A: You are in parolee status.
Q: With regard to the above question, how can I revert to H-1B status?
A: You can get back to H-1B status by applying for an H-1B extension or H-1B transfer.
For more detailed information on the H-1B category, including minimum requirements and USCIS policies, refer to the following links:
General H-1B Topics