Returning to H status after a

Returning to H status after a Denied Application to Adjust Status By: Beth Robertie, Associate In this tumultuous and unpredictable time of immigration law, putting together and filing an application to adjust status can be a very trying time for families. The issue that many of our clients are the most concerned about is what will happen if their application to adjust status is denied? If they were in nonimmigrant visa status before the application, can they go back? And what should their family do? Generally, we recommend that our clients maintain their H-1B status while they are in the process of filing their application to adjust status from nonimmigrant to immigrant. The reason for this advice is that if, for some reason, their application to adjust status is denied, then the applicant remains in valid status and is able to remain in the United States , at least for some time. Lately, however, some questions have arisen about this scenario. The most troubling and perplexing question relates to the family’s status. For example, suppose an H-1B holder has a wife and an 18-year old son who are both in H-4 status. Based on the H-1B holder’s application to adjust status, the wife and child are also eligible to file to adjust their status along with applying for advance parole and work authorization cards (EADs). Their H-4 status is unaffected by the fact that they might acquire EADs. However, what status are they in if they utilize the work authorization cards? And what must they do to remain in the US if their application to adjust status is denied after using the EADs? The most conservative answer is once the dependents of a primary applicant have utilized their EADs, they are no longer in H-4 status (as H-4 holders are prohibited from working) and are now in an authorized period of stay based on the primary applicant’s application to adjust status. This is true even if the primary beneficiary has maintained his H-1B status. Once the application to adjust status is denied for whatever reason, in order to return to H-4 status, the dependent family members must leave the US and reenter using H-4 visas. Some experts say, however, that as long as the dependent’s I-94 is still valid and indicates that the holder is in the United States on an H-4 visa, they are still eligible for an extension of their H-4 without leaving the country. In other words, even if the dependent has utilized their EAD, as long as they have not traveled using their advance parole documents, they remain eligible to file for an extension of their H-4 without having to first return home. This second, more liberal reading of the law may be indirectly controverted by guidance issued by the USCIS, however. For example, while an H-1B holder who travels on advance parole is not engaging in unauthorized work when they return to their H-1B employer (and resume working pursuant to their H-1B rather than work on an EAD), a September 1995 letter from the USCIS states that when a person in valid nonimmigrant visa status applies for adjustment of status and departs on advance parole, he loses nonimmigrant status on return and therefore his family loses nonimmigrant status when it is based on the principle’s. While more recent missives clearly state that such a person is entitled to return to their H-1B employer, the family’s situation is much less clear. Like so many areas of U.S. immigration law, this is a murky point that will only be cleared up once the USCIS issues clear guidance on the issue. To be absolutely certain that there will not be a problem, applicants to adjust status should maintain their H-1B status and travel using those documents only. The same is true for their families. If they or their families choose to take advantage of advance parole or EADs, there is no guarantee that the transition back to nonimmigrant status will be an easy one. ______________________________________________________________________________ 本文由範毅禹律師事務所提供 本律師事務所精辦各類勞工應聘及專業移民申請 (包括H-1，L-1，EB-1，EB-2，NIW，勞工卡，綠卡等申請)。所有申請由多位美籍律師及擁有15年經驗的範毅禹律師親自處理，我所並特設中英移民網站。內有最新移民新聞資訊及由律師主持的移民問答集，歡迎讀者流覽查詢。 www.Fan-Law.com CALIFORNIA : Fan, Fitzpatrick & Thompson, LLP. 370 E. Glenarm St., Pasadena , CA 91106 Tel: [phone] Fax: [phone] MARYLAND : Fan, Fitzpatrick & Thompson, LLP. 230 North Washington Street, Suite 400 , Rockville , MD 20850 Tel: [phone] Fax: [phone]