Cooley Alert: INS Eliminates the Need for Certain H-1 and L-1 Adjustment Applicants (and Derivative Family Members) to Obtain Advance Parole Before Traveling Outside the United States

By Cooley Godward Kronish LLP

INTRODUCTION

The INS has issued an Interim Rule (64 Fed Reg. 29208) that allows H-1 and L-1 adjustment applicants (green card applicants) and their family members (H-4) and (L-2), who are maintaining their valid nonimmigrant status to travel outside the United States without obtaining "advance parole" (form I-512) before their departure. The rule became effective on July 1, 1999. These advance parole exempt adjustment applicants are required to possess the following documents in order to reenter the United States and not abandon their adjustment of status application:

  • A valid nonimmigrant visa in the H-1/H-4 or L-1/L-2 category issued in their passport(s). If the alien is from a visa exempt country such as Canada they should possess either their original I-797 indicating their entitlement to their H or L nonimmigrant status or a multiple entry I-94 in the H-1/H-4 or L-1/L-2 nonimmigrant class.
  • The original I-797 for the adjustment of status (I-485) application.

CAUTION: IN ADDITION TO MEETING THE ABOVE DOCUMENTARY REQUIREMENTS, THE NONIMMIGRANT MUST REMAIN ELIGIBLE FOR THEIR NONIMMIGRANT VISA CLASSIFICATION.

WHY IS THIS CHANGE IN THE LAW IMPORTANT?

Until this interim rule was enacted, leaving the United States while an adjustment of status application was pending, meant abandoning the application unless the nonimmigrant received an advance parole document before leaving the country. This policy was formerly applied equally to all nonimmigrants, whether or not their nonimmigrant class was explicitly recognized in INS regulations as eligible for dual immigrant and nonimmigrant intent. H and L adjustment applicants who traveled abroad became applicants for admission to the United States under pre-1996 law and were subject to "grounds of excludability" as parolees. The Illegal Immigrant Reform and Immigrant Responsibility Act ("IIRAIRA") of 1996 phased out "exclusion proceedings" which would have subjected H and L applicants who reentered as parolees to a lesser standard of "due process of law" if their adjustment applications were denied. Hence, the INS thought it important to rethink their policy regarding those "dual intent" adjustment applicants and eliminated the requirement of advance parole to "provide fuller effect to '214(h) and (l) of the Act".

WHO IS ELIGIBLE TO USE THIS NEW PROVISION AND LEAVE THE UNITED STATES WITHOUT FIRST OBTAINING ADVANCE PAROLE?

  • Nonimmigrants who have applied for adjustment of status (filed form I-485 and hold in their possession an original I-797 receipt notice); who have maintained valid H-1 or L-1 Status (have valid form I-94 and have not undertaken open market employment); and have stamped in their passport unexpired visas in the H-1 or L-1 category.
  • The derivative family members (spouses and children under 21) of the above H-1 or L-1 workers who have applied for adjustment of status (filed form I-485 and hold in their possession an original I-797 receipt notice); who have maintained valid H-4 or L-2 status (have valid I-94 and have not violated their H-4 L-2 status by undertaking open market employment) and have unexpired nonimmigrant visa stamps in their passport in the H-4 or L-2 category.

WHO IS NOT ELIGIBLE TO USE THIS PROVISION AND MUST THEREFORE OBTAIN ADVANCE PAROLE BEFORE DEPARTING THE UNITED STATES?

  • Adjustment applicants in classifications other than H-1, H-4, L-1 and L-2. This includes but is not limited to adjustment applicants in: A, B, C, D, E, F, G, H-2, H-3, (and H-4 derivative family members of persons on H-2 and H-3 categories) I, J, K, M, N, O, P, Q, R and TN/TD statuses.
  • Adjustment applicants who have allowed their nonimmigrant status to lapse (nonimmigrant I-94 is expired) after the filing of their adjustment of status application. This may result because the adjustment applicant has exceeded their maximum allowable time in nonimmigrant classification (H-1/H-4 6 years; L-1B/L-2 5years; L-1A/L-2 seven years) and is not eligible for extension of status. Allowing status to lapse may also be the result of the choice of the applicant not to extend nonimmigrant status for a variety of other reasons.
  • Adjustment applicants who have traveled abroad and returned on previously issued advance paroles as "parolees" and hence are already in "parolee status".
  • Adjustment applicants who have accepted and begin "open market employment" which is employment other than that which is covered on filed, approved and valid nonimmigrant H-1 or L-1 petition(s). This employment is authorized pursuant to their unrestricted "Employment Authorization Document(s)" while their adjustment of status applications are pending. Please note however, that applying for the Employment Authorization Document does not in and of itself result in "open market employment. The H-1 or L-1 adjustment applicant must accept and begin the "open market employment" to fail to maintain their nonimmigrant status.
  • All adjustment applicants in H-4 or L-2 status who accept and begin any employment pursuant to their Employment Authorization Document(s). H-4 and L-2 nonimmigrant classifications are not authorized for employment hence any employment undertaken by an individual in either of these two categories will result in "open market employment". Please note however, that applying for the Employment Authorization Document does not in and of itself result in "open market employment." The H-4 or L-2 adjustment applicant must accept and begin the "open market employment" in order to fail to maintain their nonimmigrant status.

WHAT DECISION MUST H-1/H-4 OR L-1/L-2 ADJUSTMENT APPLICANTS MAKE AS A RESULT OF THIS NEW INTERIM RULE? WHAT ARE THE PROS AND CONS OF EACH DECISION?

H-1 and L-1 and nonimmigrants filing adjustment applications have two options with respect to work authorization. These two options are maintaining or relinquishing nonimmigrant statu.s. These two choices have different consequences. These consequences should be weighed carefully before the applicant makes his/her decision.

Maintain nonimmigrant status: H-1 or L-1 applicants may choose to continue to work pursuant to the terms of their nonimmigrant employment authorization. They must possess a valid I-94 in the appropriate nonimmigrant H-1 or L-1 classification and must be employed pursuant to a valid I-797 petition or endorsed I-129S (if blanket L status). This means that their employment is limited to the employer(s) for whom the current nonimmigrant visa petition(s) was/were approved. If the alien is an L-1 alien admitted pursuant to a blanket petition, he/she may only be employed at a listed blanket entity in a position deemed "virtually the same" or precisely the same as that listed on the endorsed I-129S petition. The nonimmigrant must timely file requests for extension of stay if his/her nonimmigrant stay will expire and he/she is still eligible to remain in that status. If the H-1 or L-1 nonimmigrant wishes to work for a new employer, he or she must wait until a new petition is approved by the Service before undertaking new employment with that employer.

H-4 or L-2 nonimmigrants must not accept and commence "open market employment" with any employer during the pendency of their adjustment applications. They may only accept such employment and maintain their nonimmigrant status by filing and receiving an approval for a change of status to H-1 or L-1 status.

CONSEQUENCE OF MAINTAINING NONIMMIGRANT STATUS

  • Adjustment applicants may travel outside the United States without first obtaining an advance parole document if they possess the documents listed in the introduction above.
  • In the event that the adjustment application is eventually denied, the nonimmigrant will be able to continue his/her nonimmigrant status in the United States and will not be subject to removal proceedings.
  • May not accept "open market employment".

CONSEQUENCE OF RELINQUISHING NONIMMIGRANT STATUS

  • Adjustment applicants must possess employment authorization document before seeking and accepting "open market employment."
  • Adjustment applicants must possess advance parole before traveling outside the United States. If they do not first obtain the advance parole document, they will abandon their adjustment of status application and may be denied reentry into the United States.
  • In the event that the adjustment application is eventually denied, the alien would no longer be in lawful status and would be subject to removal proceedings. Additionally, the alien may be subject to a 3-year or 10-year bar on admission to the United States, depending on how long the alien remained in the United States after relinquishing his/her nonimmigrant status.

PLEASE NOTE THAT IF THE ADJUSTMENT OF STATUS APPLICATION IS APPROVED, THERE IS LITTLE DIFFERENCE IN PURSUING EITHER OF THE ABOVE COURSES OF ACTION.

CONCLUSION:

Cooley Godward views the Service's implementation of its interim rule eliminating the need for advance parole for certain H-1/H-4 and L-1/L-2 adjustment applicants as a positive measure designed to give these aliens greater flexibility in the event they are required to travel abroad on short notice. This also gives these aliens a degree of security should their adjustment applications be denied. We also understand that because of immutable circumstances or because of personal choice, certain adjustment applicants will choose to undertake "open market employment" or may relinquish their nonimmigrant status for other reasons. If so, we are prepared to obtain the necessary "employment authorization document(s)" and "advance parole" travel document(s) to ensure their lawful compliance with immigration laws until the approval of their adjustment of status applications. Either way, Cooley Godward's staff of trained immigration professionals will assist and guide our clients in making this important decision. Please contact our office at 415 693-2000 and ask for Lance D. Nagel or any other attorney in the immigration department if you have further questions regarding this Cooley Alert.

Footnotes:

1. See above under "Who is NOT eligible to use this provision and must therefore obtain advance parole before departing the United States" for an explanation of what is meant by "Open Market Employment"

2. Id.

3. The Service, in its preamble to the interim rule implementing the policy eliminating the advance parole requirement, has indicated that it is willing to expand the "dual intent" concept to E,F,J, and M visa classifications. It is logical to conclude that if this expansion of "dual intent" occurs, adjustment applicants in these classifications will also be eligible to travel on their underlying valid visas without first obtaining advance parole. We will notify our clients in a future "Cooley Alert" if the concept of "dual intent" is expanded to other nonimmigrant classifications.

4. This would not be necessary for blanket L beneficiaries who obtained new employment at a listed blanket entity in a job "virtually the same" as the position described on their endorsed and valid I-129S.

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