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Dinsmore | Immigration
 
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Adjustment of Status, Employment Authorization,
Advance Parole & H-1B and L-1 Status

For many adjustment of status applicants, understanding the relationships among H and L nonimmigrant status, employment authorization documents (EAD), and Advance Parole travel authorizations can be confusing. The frequently asked questions below are designed to reduce some of the confusion.

Please note that many interpretations of U.S. Citizenship and Immigration Services (USCIS) and other governmental agencies’ rules and procedures are not specifically addressed in the immigration law or regulations. Instead, the “rules” are based on USCIS memos and opinions. While we believe USCIS will continue to rely on its published memos and opinions, you should note that some memos and opinions are not always followed by USCIS and other government agencies.

What are the advantages of maintaining H-1B/H-4/L-1/L-2 status while I have a pending adjustment of status (AOS) application?

There are several advantages to maintaining your nonimmigrant status because this approach provides you with an additional layer of immigration status, work authorization, and travel options.

  • First, if your adjustment of status (AOS) application is denied, your EAD and Advance Parole authorizations also will be denied. If you are outside the U.S. and your AOS application is denied, you will not be able to use your Advance Parole to return to the U.S. By maintaining valid H-1B or L-1 status your work authorization and nonimmigrant status can be protected. If you are abroad, you may be eligible to return to the U.S. on your H-1B or L-1 visa.
  • Second, some EADs and all Advance Paroles have a validity period of only one year at a time. Requests to renew these documents must be filed well in advance, and there is no guarantee that your EAD and Advance Parole will be renewed before they will expire. You are not permitted to work in the U.S. or to travel internationally if either document expires before you are able to obtain new documents. In contrast, you are able to work while an H-1B or L-1 extension request is pending on your behalf as long as the extension petition was timely filed by your current employer for the same job.
  • Finally, if you have H-1B or L-1 status, you are in most cases able to travel internationally, rather than having to wait for issuance of Advance Parole documents before leaving the U.S.
What are the advantages of applying for an EAD and Advance Parole if I am maintaining valid H-1B/H-4/L-1/L-2 status?

  • It is not necessary for an H-1B or L-1 nonimmigrant also to apply for an EAD, but the EAD offers another layer of work authorization. The EAD is the most definitive work authorization document issued and it allows the holder to work for any employer including for oneself. Also, having an EAD allows the holder to more easily obtain new employment in the event of a job termination.
  • In addition, for those in L-1 nonimmigrant status who typically are limited to 5 years or 7 years of L-1 status in the U.S., having an EAD allows the holder to remain work authorized even after the 5 years or 7 years expire.
  • Persons holding Advance Parole are not required to obtain a nonimmigrant H-1B or L-1 (or H-4 or L-2) visa outside of the U.S. in order to be able to return to the U.S. after a trip abroad. This can be an advantage if there are long delays in scheduling a visa appointment or obtaining a nonimmigrant visa. Also, some visa applications at U.S. consulates can be delayed for security check reasons, so having an Advance Parole means no further applications for an H or L visa at a U.S. consulate.
If I am a H-1/H-4/L-1/L-2 nonimmigrant and I obtain an EAD based my AOS application but do not use my EAD to work, am I still maintaining my nonimmigrant status?

Yes. If you obtain an EAD but do not actually use your EAD to work, then you have not compromised your H or L status. It is the actual use of the EAD to work that causes the person’s H or L status to end.

I am an H-1B or L-1 nonimmigrant who has traveled abroad and re-entered the U.S. via Advance Parole. Am I in parole status and am I eligible to apply for an extension of my H-1B or L-1 nonimmigrant status? Also, what is my authorization to work?

If you travel back to the U.S. using your Advance Parole and re-enter, you are considered to have been “paroled” back into the U.S. However, you are eligible for an extension of your H-1B or L-1 status even if your last entry was as a parolee if there was, and remains, a valid H-1B or L-1 petition approval on your behalf. If USCIS approves a request by your employer for an extension of your H-1B or L-1 status, such an extension approval will terminate the grant of parole and convert you back to an H-1B or L-1 nonimmigrant.

If your H-1 or L-1 employment authorization would not have expired when you were paroled into the U.S. pursuant to Advance Parole, then you are authorized to work based upon the underlying H-1B or L-1 petition approval – but you may work only for the H-1B or L-1 employer that sponsored your H-1B or L-1 status and only in the job described in the H-1B or L-1 petition approval.

I have used my EAD card and intend to travel. Can I reenter the U.S. as an H or L nonimmigrant?

If you are an H-1B, H-4, L-1 or L-2 nonimmigrant who has used his/her EAD card to work, and if you plan to return to the U.S. to continue to work pursuant to your EAD, we recommend that you present a valid Advance Parole to apply for re-entry to the U.S. after a trip abroad.

I am returning to the U.S. from travel abroad. I have Advance Parole and a valid H or L visa in my passport. Should I be present my Advance Parole for re-entry or should I present my H or L visa?

If you have a valid H or L visa in your passport and are eligible for H or L nonimmigrant status, you may either be readmitted in H or L status or you may be paroled into the U.S. pursuant to Advance Parole. It is your decision regarding which document to present at the time of U.S. immigration inspection. If you re-enter as an H-1B or an L-1 nonimmigrant, then you should resume employment with the same employer in the same job as described in the H-1B or L-1 petition that your employer previously filed for you.

If you are an H-4/L-2 dependent and possess a valid H-4 or L-2 visa in your passport, you may re-enter using your H-4 or L-2 visa as long as your visa is valid and as long as the principal H-1B or L-1 nonimmigrant continues to hold valid H-1B or L-1 status.

NOTE: If you have both a valid H or L visa and also an Advance Parole and an EAD card, we recommend that you use the H or L visa to re-enter at least until the I-140 Immigrant Petition is approved. This will ensure that you have a "back-up" status that is not tied to your AOS application if USCIS were to deny your AOS application.

My job has changed since the latest H-1B or L-1 petition was approved. Should I have Advance Parole before traveling abroad?

Yes. You may be readmitted to the U.S. as an H-1B or L-1 nonimmigrant, but only if you are returning to resume your employment for the same employer and in the same capacity as described in the H-1B or L-1 petition that your employer previously filed for you. Therefore, we recommend that you have Advance Parole and an EAD before you depart the U.S. and that you use your Advance Parole to apply for re-entry to the U.S.

My adjustment application is still pending. Are there any risks associated with using my Advance Parole?

Traveling outside the U.S. while an AOS application is pending can be risky, even with Advance Parole. If an AOS applicant travels abroad while his or her AOS application is pending, and if CIS denies the AOS application while the applicant is outside the U.S., the Advance Parole is revoked according to a 2008 decision by a U.S. federal court. (See the U.S. Court of Appeals for the Ninth Circuit decision in Hassan v. Chertoff, http://www.metnews.com/sos.cgi?0908%2F0617252.) In this case, the court said that the AOS applicant was granted Advance Parole only to allow him to return to the U.S. while his AOS application was pending with CIS. The court decided that once the AOS application was denied, the applicant was no longer eligible for Advance Parole. Therefore, the risk is that if you plan to use your Advance Parole to return to the U.S. and, if while you are outside the U.S. your AOS application is denied, you will not be able to use your Advance Parole to return to the U.S.

I do not hold a current H or L visa in my passport but would like to re-enter in H or L status. Can I do this?

While this is acceptable, you are required to apply for an H or L visa via an appointment with a U.S. consulate (unless you are a Canadian citizen). To ensure that you do not get stuck abroad due to unexpected H or L visa application difficulties or delays at a U.S. consulate, you should also have an Advance Parole document (prior to departure from the U.S.) as a back-up document to permit you to travel back to the U.S.

I am an adjustment applicant and I do not have H or L status. Do I need to have Advance Parole before I travel?

Yes. You must have Advance Parole before you depart the U.S. after filing an AOS application. The need to possess an Advance Parole applies to a variety of nonimmigrant visa categories including but not limited to E, F, J, O, P, R, and TN. Only persons eligible to travel to the U.S. in H-1B, H-4, L-1 or L-2 classification are exempt from the Advance Parole requirement.

I have applied for Advance Parole. Can I leave the U.S. before receiving approval?

That depends. If you are the beneficiary of an approved H-1B or L-1 petition and have an AOS application pending with USCIS, you do not need to wait in the U.S. until Advance Parole is issued to you.

If you are not the beneficiary of a valid, approved H-1B or L-1 petition and have filed an AOS application, you must have your Advance Parole in your possession before you leave the U.S. If USCIS has not yet issued you an Advance Parole, your departure from the U.S. will cause your AOS application to be regarded as having been abandoned and you might not be able to return to the U.S.

 

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