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INS Permits Use of Advance Parole, Continuation of Work in H, L Status

05/18/2000

May 18, 2000 -- INS on May 16, 2000 issued a field memorandum that rever
sed course from an earlier memorandum, and states that until a final rul
e is published, individuals who enter on advance parole and continue wor
king on the basis of their H-1 or L-1 status will not be considered enga
ging in unauthorized employment. The memo states that this policy will b
e in force until a final rule on advance parole is published and takes e
ffect, intimating that the policy stated in the March 14 memorandum coul
d be reinstated as a part of the final rule. An interim rule was publish
ed on June 1, 1999 that permitted H-1 and L-1 nonimmigrants to travel wi
thout obtaining advance parole.

Typically, when individuals have adjustment of status applications on fi
le to obtain permanent residence, they are not permitted to travel witho
ut parole. In 1997, INS stated that adjustment applicants in H-1 and L-1
status need not obtain separate employment authorization in addition to
that which they already had pursuant to their nonimmigrant statuses. In
dividuals could thereby depart the United States, return on advance paro
le, and resume work pursuant to nonimmigrant status, assuming it is stil
l valid. The June 1999 interim rule permitted individuals in H-1 and L-1
status to travel without advance parole, though many individuals have c
ontinued to use it. The March 14 memo marked a reversal of the 1997 poli
cy, and would have required adjustment applicants to obtain separate emp
loyment authorization documents in order to work. The May 16 memo, howev
er, reverses this, at least until a final rule is published, which is ex
pected later this year.

Until the final rule is issued, assuming that an individual's H-1 or L-1
status has not expired, a nonimmigrant may travel and return using adva
nce parole and continue to work pursuant to H-1 or L-1 classification. T
he memo states that "the Service will not consider a paroled adjustment
applicant's failure to obtain a separate employment authorization docume
nt to mean that the paroled adjustment applicant engaged in unauthorized
employment by working for the H-1 or L-1 employer between the date of h
is or her parole and the date to be specified in the final rule." The im
plication is that the final rule will, at some point, require that an em
ployment authorization document be obtained if an individual re-entering
on advance parole plans to work.