Effect of Travel While in H1B / L-1 Status and Pending I-485
Posted Mar 21, 2008
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There are questions commonly on the minds of many Murthy Law Firm clients, as well as the greater immigrant community, that involve the effect of reentry into the U.S. on those who hold H1B or L-1 status as well as having approved Advance Parole (AP) based upon pending applications to adjust status (I-485). The law pertaining to this situation is not clear and the result is confusion. Thus, many with both H1B (or L-1) status and AP find themselves faced with the difficult decision of how to reenter the U.S. after travel abroad. One must decide between reentering in H1B (or L-1) status, which requires that the passport have a valid H1B (or L-1) visa stamp or utilizing the AP document. AP does not require an approved visa at the U.S. consulate. Such individuals are concerned about the manner they choose for reentering, as this may affect their respective status in the U.S. Answers to many of these questions are in our MurthyBulletin article, Adjustment of Status and Travel : Your Questions Answered! (August 31, 2007), available on MurthyDotCom. The differences between entering in H1B (or L-1) status as opposed to entry on AP, as well as the effect on one's immigration status and employment authorization are explored here for the benefit of our readers.
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One Entering on AP Becomes a Parolee
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It is a common misconception that entering the U.S. on a valid AP will not impact one's H1B (or L-1) status. An individual with a pending I-485 application, who is eligible to enter in H1B (or L-1) status, may do so without abandoning the I-485 application. Using the AP to enter the U.S., however, terminates one's nonimmigrant H1B (or L-1) status. The reason for this is that an entry on AP is not considered an admission in any particular status but, rather, it is a separate form of entry known as parole. Since the most important document evidencing one's status in the U.S. is the I-94 form, one may easily determine the category of entry by looking at the I-94 issued at the port of entry. One who enters the U.S. on AP has a notation on the I-94 indicating that s/he is paroled into the U.S. An individual who uses a valid H1B (or L-1) visa to enter the U.S. is issued an I-94 specifying the appropriate nonimmigrant status and the date of expiration.
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The complete analysis, however, is not quite so simple. Under Legacy INS memoranda issued March 2000 and revised in May 2000, the H (or L) individual who enters on AP does not lose all benefits related to the H-1 (or L-1) status. This is wherein the confusion arises, as explained below.
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Parolee may Work for H1B (or L-1) Employer without Valid EAD
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Pursuant to the Legacy INS memorandum issued on May 16, 2000, a parolee may continue to work for the H1B (or L-1) employer "if the alien's H1B or L-1 employment authorization would not have expired had the alien not left and returned under advance parole." Such employment is not regarded as being unauthorized, even if the individual does not hold a valid Employment Authorization Document (EAD). In practical terms, while an individual in this situation would no longer hold a nonimmigrant status, s/he still would be able to use the H1B (or L-1) employment authorization to continue working for the H1B (or L-1) employer. This appears to be the most difficult concept to understand, as it does not have any parallel applications within other immigration concepts. The easiest way to grasp this is to think of the unexpired H1B (or L-1) approved petition and I-94 in this situation as employment authorization, which does not give one a corresponding status. Essentially, while the individual does not hold H-1 (or L-1) status after a paroled entry, s/he does retain some of the privileges of that status. It is important to note, however, that in the event that one's I-485 application is denied, the individual would be out of status since s/he would not be maintaining the H (or L) status.
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One who chooses to enter the U.S. on AP to resume working for the H1B (or L-1) employer, according to the terms of an unexpired nonimmigrant petition, is eligible to use it as employment authorization. Therefore, s/he does not need a separate EAD. Since the employee continues to hold a valid document permitting employment, the travel and reentry do not trigger any obligations on the part of the employer with respect to Form I-9 prior to the expiration of the H1B (or L-1) petition.
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EAD is Safer / H1B Makes Extensions Possible
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As a matter of precaution, since the above information is based on a long-standing Legacy INS memo, rather than law or regulation, it may be advisable to possess an EAD in this situation, in the event of any questions on the issue. However, even in that scenario, the employer would not seem to have any additional I-9 obligations, as the last document reviewed by the employer (H1B or L-1 I-94) would be unexpired. Also, the employee would be allowed to file for the H1B (or L-1) extensions even after entering on AP.
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Parolees Resume H1B (or L-1) Status upon Admission or upon Approval of H/L Petition
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The May 2000 memorandum clarified that an H1B (or L-1) nonimmigrant, who has traveled abroad and reentered the U.S. on AP "may apply for an extension of H1B or L-1 status, if there is a valid and approved petition." If the USCIS approves the petition, this "will have the effect of terminating the grant of parole and admitting the alien in the relevant nonimmigrant classification." Therefore, one's H1B (or L-1) status will be reinstated upon the approval of the petition for extension of status. In order to utilize these provisions, s/he should have resumed employment with the H1B (or L-1) employer following the paroled entry.
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Similar Result if Employer Files H1B Amendment
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The same effect would be achieved if the current employer files an amended petition. It can also be achieved if the individual works for the H1B employer, and later seeks to extend H1B status through a change of employer. Additionally, since the AP entry does not invalidate the approved H1B (or L-1) petition, the foreign national potentially could regain H (or L) status by traveling abroad and reentering with a valid H (or L) visa, and obtaining an H (or L) notation on the I-94 card at the port of entry. In these circumstances, the H (or L) status will be reinstated, giving one the benefit of continuing in that status for a length of time even if the I-485 ultimately is denied. Thus, when one wishes to maintain H1B (or L-1) status, which is often the case, this still may be accomplished, even if AP is used for entry at some stage in the process. This is particularly straightforward for individuals who have H1B (or L-1) status that will need to be extended shortly after their reentry into the U.S. The H (or L) extension, if approved, will put them back in H (or L) status, even if they last entered on AP. At the Murthy Law Firm, we also see many situations in which one uses AP for emergency travel or shorter trips, but then seeks the H (or L) visa on a later trip, when time allows for a visa application at the consulate.
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Conclusion
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An H (or L) nonimmigrant with a pending I-485 application may have to make a number of decisions before traveling abroad. These decisions potentially subject one to an unintended result that could have been easily prevented, if anticipated. There are risks and variables to weigh, each of which is case specific. Because each person's situation is different, a consultation with a knowledgeable, experienced attorney is advisable prior to travel. Additionally, since AP can take several months to process, it is often a good idea to request AP just in case it is needed for an emergency or other unexpected situation, even if the intention is to travel as an H (or L) nonimmigrant.
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