INS on H & Ls: Elimination of the Advance Parole Requirement

Memorandum For:
Regional Directors
Service Center Directors
District Directors
Officers In Charge
Asylum Directors

From: Robert Bach
Executive Associate Commissioner
Office Of Policy And Planning

Subject: H-1 and L-1: Pending Applications for Adjustment of Status, validity of nonimmigrant status, and the elimination of the advance parole requirement.

On June 1, 1999, the Service published an interim rule at 64 FR 29209. The rule amends 8 CFR sections 214 and 245 to codify previous Service policy statements regarding the eligibility of H-1 and L-1 nonimmigrants, and their dependent family members, to maintain and to extend their nonimmigrant status while their applications for permanent residence remain pending. This rule also addresses the issue of the eligibility of these aliens to travel outside the Untied States without abandoning their applications for status.

The rule amends section 214 by providing that, in addition to the approval of a labor certification or preference visa petition, the filing of an application for adjustment of status cannot be the basis for a denial of an H-1 or L-1 application for extension of stay or change of status within the H-1 or L-1 classifications.

As long as H-1 and L-1 nonimmigrants remain compliant with their nonimmigrant classification, including restrictions on periods of stay, change of employer and engaging in employment, the mere fact that they have filed an application for status does not make them ineligible for extensions or applicable changes to their nonimmigrant status.

The rule also amends section 245 by providing that an H-1 or L-1 nonimmigrant with a pending application for adjustment of status no longer needs to seek advance parole to travel abroad. An H-1 or L-1 nonimmigrant may be readmitted to the United States in the same status provided that he or she has a valid H- I or L-1 visa (for those not visa exempt), has the original I-797 receipt notice for the I-485, and remains eligible for H-1 or L-1 classification.

Please see the below questions and answers taken from the interim rule for more information:

This rule is being issued to codify previous Service policy statements regarding the eligibility of H-1 and L-1 nonimmigrants, and their dependent family members, to maintain and to extend their nonimmigrant status while their applications for permanent residence remain pending. This rule also addresses the issue of the eligibility of these aliens to travel outside the Untied States without abandoning their applications for status.

Under Section 214(b) of the Immigration and Nationality Act, (Act), most nonimmigrants who apply for adjustment of status to that of permanent residents of the United States are presumed to be intending immigrants and, therefore, are no longer eligible to maintain nonimmigrant status. Section 214(h) of the Act, however, permits aliens described in section 101(a)(15)(H)(i) and (L) of the Act, i.e., temporary workers in specialty occupations, intracompany managerial or executive transferees, and their dependent spouses and children, to maintain their nonimmigrant status during the pendency of their applications for adjustment of status.

Section 214(h) of the Act specifically provides that the fact that an H-1 or L-1 nonimmigrant is the beneficiary of an application for a preference status filed under section 204 or has "otherwise sought permanent residence" in the United States shall not constitute evidence of an intent to abandon the foreign residence. The Service interprets section 214(h) to mean that, in addition to the approval of a labor certification or a preference visa petition, the mere filing of an application for status shall not be the basis for denying an H-1 or L-1 nonimmigrant's properly completed application (or that of their dependent family members in H-4 or L-2 status) for extension of stay or change of status within the H-1 or L-1 (or, as applicable, a H-4 or L-2) classifications. A pending adjustment application, however, does not relieve nonimmigrant H-1 and L-1 aliens of the requirement to comply with the terms of their nonimmigrant classification, including restrictions on periods of stay, change of employer, and engaging in employment. For example, changing employers without first obtaining approval from the Service will cause the alien to lose his or her valid H-1 or L-1 nonimmigrant status.

Current Service regulations at Sec. 245.2(a)(4)(ii) require that all adjustment applicants obtain advance parole authorization prior to traveling outside the United States. Prior to enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 [IIRAIRA], such persons were deemed to be applicants seeking admission and were subject to the grounds of excludability. The Service imposed the advance parole requirement and the concomitant exclusion process in order to maintain control over the re-entry of such aliens. With the phasing out of exclusion proceedings under IIRAIRA, however, the Service believes it is now appropriate to amend its regulations to provide fuller effect to section 214(h) of the Act by exempting H-1 and L-1 nonimmigrants with pending applications for adjustment of status (as well as their dependent family members) from obtaining advance parole authorization prior to traveling outside the United States. Generally, such H-1 and L-1 nonimmigrants may be readmitted into the United States in the same status provided they are in possession of a valid H-1 or L-1 nonimmigrant visa (for those aliens not visa exempt), and the original I-797 receipt notice for the application for adjustment of status, and continue to remain eligible for H-1 or L-1 classification. However, travel in violation of the regulations governing breakage in continuity in status for H-1 or L-1 nonimmigrants will cause the alien to lose his or her valid H-1 or L-1 nonimmigrant status. All other nonimmigrants with pending applications for adjustment of status must obtain advance parole authorization in accordance with Sec. 245.2(a)(4)(ii) prior to traveling outside the United States.

H-1 and L-1 nonimmigrants filing applications for permanent residence have two options with respect to work authorization, but the choices have different consequences. Such aliens, of course, may continue to work in accordance with the terms of their nonimmigrant employment authorization, as provided in Sec. 274a.12(b)(9) or (12). This means that, while their application for adjustment of status is still pending, their employment is limited to the employer for whom the current nonimmigrant visa petition was approved.

In the alternative, when filing an application for permanent residence, an H-1 or L-1 nonimmigrant may also file a form I-765 application for unrestricted employment authorization as provided in Sec. 274a.12(c)(9). After receiving an Employment Authorization Document, the alien would be eligible to work for any employer, and this work authorization would continue as long as the alien's application for adjustment of status remains pending. However, such an alien should bear in mind that, by accepting employment with an employer other than the one which filed the approved H-1 or L-1 nonimmigrant petition under Sec. 274a.12(c)(9), the alien would no longer be in compliance with the requirements of the H-1 or L-1 nonimmigrant status.

If the alien's application for adjustment of status is ultimately approved, then it would not matter which option the alien had followed. However, if the application for adjustment is denied, then the alien's status would depend on which option was followed. If the alien had continued to work for an approved employer under the terms of his or her H-1 or L-1 status, and otherwise properly maintained such status, the alien would still retain his or her nonimmigrant status, if that status had not yet expired according to the established terms. However, an alien who had chosen to work for a different employer during the period that his or her application for adjustment of status was pending would have thereby lost his or her H-1 or L-1 nonimmigrant status. Thus, if the alien's application for adjustment of status is denied, the alien would no longer be in a lawful status and would be subject to removal proceedings. In addition, a dependent family member who had chosen to engage in unrestricted employment while the application for adjustment of status was pending would lose his or her H-4 or L-2 nonimmigrant dependent status. Therefore, if the principal's application for adjustment of status is denied, such dependent family members would also not be in a lawful status and could not revert back to H-4 or L-2 dependent status.

H-1 and L-1 nonimmigrants filing adjustment applications who intend to seek open-market employment authorization under Sec. 274a.12(c)(9) should file Form I-765 concurrently with the I-485 to avoid a lapse of employment authorization. After filing the Form I-765, the H-1 or L-1 nonimmigrant must wait until he or she receives the employment authorization document before the alien may enter into open-market employment. The INS Service Centers will continue to entertain requests for expeditious handling of Form I-765 employment authorization requests in accordance with prevailing criteria. Expeditious handling of a request for employment authorization under Sec. 274a.12(c)(9), however, may be insufficient to ensure that a lapse in employment authorization does not occur when the application for status is filed near the expiration of H-1 or L-1 nonimmigrant status.

An alien whose adjustment of status application is denied but who has continuously maintained his or her H-1 or L-1 nonimmigrant status while the adjustment application was pending, may continue to work in accordance with the terms of the nonimmigrant visa. If the adjustment of status application is denied, any employment authorization granted to the alien under Sec. 274a.12(c)(9) will be subject to termination pursuant to Sec. 274a.14(b). Further, if the alien is not maintaining his or her H-1 or L-1 nonimmigrant status, he or she will be subject to removal proceedings.

In accordance with 8 CFR 211.1, a Form I-797 approval notice for an adjustment of status application is insufficient to establish an arriving alien's entitlement to lawful permanent residence. An H-1 or L-1 nonimmigrant (or a dependent family member) whose application for adjustment of status was approved during the alien's absence from the United States will be granted deferred inspection in accordance with Sec. 235.2(b) upon presentation of a valid I-797 notice of approval of the application for status. Such deferred inspection shall be for the purpose of providing conclusive evidence that the alien's status has in fact been adjusted to that of a lawful permanent resident.

All operational regional program units should familiarize themselves with this memorandum and related procedures in order to be responsive to any inquiry from the field. Questions regarding the implementation of this memorandum may be directed, through appropriate supervisory channels to HQADN, ATTN: Michael Valverde, 202/514-4754.