H-1 / L-1, EAD and AP

Prior to July of 1999, all adjustment applicants were required to obtain advance parole authorization before traveling outside the United States. A person with a pending I-485 application and without an advance parole at the time of reentry after foreign travel was deemed to have abandoned the adjustment application. That policy changed from July of 1999, as previously reported in the MurthyBulletin, to allow persons in valid H-1, L-1, H-4 or L-2 status to maintain that status even after filing for adjustment of status (I-485) and to use H or L visas (instead of advance parole) for travel.

Generally, H-1 and L-1 non-immigrants and their dependents in H-4 or L-2 status who have adjustment applications pending may be readmitted into the United States in the H or L status, provided they are in possession of a valid H-1 or L-1 nonimmigrant visa, and the original I-797 receipt notice for the application for adjustment of status, and they continue to remain eligible for the H-1 or L-1 classification. All other non-immigrants with pending applications for adjustment of status must obtain advance parole authorization prior to traveling outside the United States.

On May 16, 2000 the INS provided further clarification on how they were going to view the interim rule and provided several points.

- For purposes of approval of the I-485, those who are on the H-1 or L-1 status are required to prove their intent to work for the petitioning employer in their employment-based adjustment of status case, even though they can obtain the non-restrictive work authorization (EAD).

- If an H-1 or L-1 holder decides to file for and obtain the EAD but keeps working for the same company, he/she is still in valid H-1 or L-1 status and able to extend the H-1 or L-1 as needed (up to the maximum allowable time on that status). The mere fact of obtaining the EAD does not affect one's status; only if the person uses the EAD to take on another job, would he/she no longer be considered to be maintaining H or L status.

- If a person obtained an EAD and then went to work for another company while waiting for the completion of her/his adjustment case, that action would effectively terminate the H-1 or L-1 status of the beneficiary and she/he would have to file for advance parole to travel. The H-1 or L-1 holder would not be able to renew the H-1 or L-1 status in this situation.

- An H-1 or L-1 holder who entered the United States on advance parole can apply for an extension of H or L status, and the approval of that extension would enable the person to return to the U.S. on H-1 or L-1 status. (To maintain that status, the person cannot seek outside employment.)

- An H-1 or L-1 holder who travels out of the United States, and returns on advance parole, is authorized to continue working for the H-1 or L-1 employer. He/she would not be required to obtain an EAD to work for this same employer, within the validity dates of the H-1 or L-1 petition approval.

- If an H-1 or L-1 holder presents both advance parole documents and documents of valid H-1 or L-1 status at the port of entry to the U.S., the INS Inspector should tell the person that she/he is not required to present the advance parole, and admit the person to the U.S. on the H-1 or L-1 status.

- An H-1 or L-1 holder who has entered the U.S. with an advance parole document may depart and return as an H-1 or L-1 holder if that status has not expired.

The May 2000 INS memo implies that the new INS regulations will be consistent with the information above. The Law Office of Sheela Murthy, P.C. applauds the INS for issuing clear guidance on this important matter.

The H-1 and L-1 in the INS Guidance indicate those who enter the US on H-1 or L-1 visa which is issued by US Embassy or Consulate of the Department of States, and there is a visa stamp on their passport. It doesn’t include those people who change their previous status to these status categories after they enter the US---this change of status is processed by INS Service Center. For those people holding H or L visa to enter the US, they are eligible for travel overseas and still keep their H or L status after returning back to the US as long as their visa is still valid, there is no need for them to bother to use AP for travel. However, for most of us who enter the US on F-1 visa, and then change to H-1B status after we get a job, this is not the case. We lose our H-1B status if we travel overseas, but we can use AP to return the US and still work legally with EAD. Again, the reason why we must use AP for travel even if our H-1B is still in the allowable time is this, we didn’t hold H-1B visa when we first enter the US.