The final step to obtaining permanent residency is the filing of an adjustment
of status application. This application is filed with USCIS and requests that,
based on your approved I-140, your status be adjusted from that of "non-immigrant"
(i.e., H1B) to immigrant (i.e., permanent resident). This application is biographical
in nature and requires fingerprints, medical exams, etc.
Travel & Work on H and L Visas After AOS is Filed
This memorandum supersedes and amends theMarch 14, 2000 memorandum on
dual intent for H-1 and L-1 non-immigrants with pending applications for
adjustment of status, which changes the Adjudicator's Field Manual, Chapter
23.
Please note that the Service intends to address these issues definitively
when the Service finalizes the interim rule published on June 1, 1999, at
64 Fed. Reg. 29,208 (1999).When the final rule enters into force, the final
rule, not this memorandum, will be controlling.
In Chapter 23 of the Adjudicator's Field Manual, the questions and answers
added at APPENDIX 23-4, entitled FREQUENTLY ASKED QUESTIONS ABOUT TRAVEL
OUTSIDE THE UNITED STATES BY AN H-1 OR L-1 NON-IMMIGRANT WHO HAS APPLIED
FOR ADJUSTMENT OF STATUS: by the March 14, 2000 memorandum, are removed
and replaced with the questions and answers below:
Q: If an H-1 or L-1 non-immigrant hasfiled for adjustment of status under
an employment-based preference category that requires an offer of employment
in the United States, doesthe interim rule affect the applicant's responsibility
to establish his/her intent to work for the petitioning entity?
A: NO. If an H-1 or L-1 has filed for adjustment status under an employment-based
preference category that requires an offer of employment in the U.S., the
applicant still has the responsibility of establishing his/her intent to
work for the petitioning entity after becoming a permanent resident. Neither
the rule nor the guidance has modified this requirement or the corresponding
requirement that the employer establish his or her intent to employ the
applicant.
In the interim rule and initial guidance, the term "open-market employment"
was used to mean unrestricted access to employment. Applicants with pending
applications for AOS are eligible to apply for an employment authorization
document (EAD). With EAD, an alien has access to unrestricted employment,
the "open-market." However, if the applicant is adjusting status under an
employment-based preference category that requires an offer of employment
in the U.S., the fact that an applicant is able to work in the open market
does not alter the applicant's responsibility to demonstrate intent to work
permanently for the petition employer, i.e. to accept and work in the labor
certified position.
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Q: If an H-1 or L-1 non-immigrantor H-4 or L-2 dependent family
member obtains an EAD based on their application for adjustment of status
but does not use it to obtain employment, is the alien still maintaining
his or her non-immigrantstatus?
A: YES. The fact that an H or L non-immigrant is granted an EAD does not
cause the alien to violate his or her non-immigrant status. There may be
legitimate reasons for an H or L non-immigrant to apply for an EAD on the
basis of a pending application for adjustment of status. However, an H-1
or L-1 non-immigrant will violate his or her non-immigrant status if she/he
used the EAD to leave the employer listed on the approved I-129 petition
and engage in employment for a separate employer.
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Q: If an H-1 or L-1 non-immigrant has traveled abroad and was
paroled into the United States via advance parole, the alien is accordingly
in parole status. Does this interim rule allow him or her to now apply for
an extension of non-immigrant status?
A: Until the final rule is published, an alien who was an H-1 or L-1 non-immigrant,
but who was paroled pursuant to a grant of advance parole, may apply for
an extension of H-1 or L-1 status, if there is a valid and approved petition.
If the Service determines the alien's application for an extension of non-immigrant
status, the decision granting such an extension will have the effect of
terminating the grant of parole and admitting the alien in the relevant
non-immigrant classification.
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Q: If an H or L non-immigrant has traveled abroad and reentered
the U.S. via advance parole, the alien is accordingly in parole status.
Does this interim rule allow him or her to now apply for an extension of
non-immigrant status?
A: A Service memorandum dated August 5, 1997, stated that an "adjustment
applicant's otherwise valid and unexpired non-immigrant employment authorization...is
not terminated by his or her temporary departure from the United States,
if prior to such departure the applicant obtained advance parole in accordance
with 8 CFR 245.2(a)(4)(ii)." The Service intends to clarify this issue in
the final rule. Until then, if the alien's H-1 or L-1 employment authorization
would not have expired, had the alien not left and returned under advance
parole, the Service will not consider a paroled adjustment applicant's failure
to obtain a separate employment authorization document 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 his or her parole and the
date to be specified in the final rule.
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Q: Should an alien returning to the United States from travel
abroad who has a valid 1-512 and a valid H-1 or L-1 non-immigrant visa be
paroled in or readmitted in H-1 or L-1 status?
A: If an alien has a valid H-1 or L-1 non-immigrant visa and is eligible
for H-1 or L-1 non-immigrant status and also has a valid Form I-512, he
or she may be readmitted into H-1 or L-1 status or be paroled into the United
States. It is the alien's prerogative to present either document at inspection.
However, if an alien presents both a valid H-1 or L-1 non-immigrant visa
and a valid Form I-512, and the alien is eligible for the H-1 or L-1 non-immigrant
classification, the Service should inform the alien that H-1 and L-1 non-immigrants
no longer need to use advance parole to preserve pending applications for
adjustment of status and should admit the alien in H-1 or L-1 non-immigrant
status. The fact that an alien has applied for advance parole and received
Form I-512 does not compel him or her to use the advance parole.
If the alien is not admissible as an H-1 or L-1 non-immigrant, then he or
she cannot be readmitted as an H-1 or L-1 non-immigrant. Instead, such an
alien may be paroled into the United States.
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Q: Is an alien who has a multiple entry 1-512 and who has previously
been paroled into the United States now eligible for admission as an H-1
or L-1 if he or she is still in possession of a valid H-1 or L-1 visa?
A: Yes, the alien may be admitted as an H-1 or L-1. However, aliens returning
from abroad may only be admitted as an H-1 or L-1 when they have a valid
H-1 or L-1 visa (unless visa exempt), remain eligible for H-1 or L-1 classification,
and, where there has been a recent change of employer or extension of stay,
have evidence of an approved I-129 petition in the form of a notation on
the non-immigrant visa indicating the petition number and the employer's
name, or a notice of action, Form I-797, indicating approval. If they do
not meet these criteria, then they use their 1-512.
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Memo from USCIS, 5/16/2000
If you are currently married, and your spouse is in the US in valid status,
but is not already a permanent resident or US citizen, then you can include
your spouse in your adjustment of status application as your "derivative"
and your spouse will become a permanent resident at the same time you do,
provided you are married at the time the adjustment is approved by USCIS
and your spouse meets all eligibility requirements.
If you are currently married and your spouse is not already a US permanent
resident or US citizen and is living outside the US, you have two choices.
First, your spouse can enter the US before you file for your adjustment
of status and you can include your spouse in your adjustment application.
Second, your spouse can wait outside the US until your adjustment is granted
and then apply for an immigrant visa through the US Consulate in the Country
where he or she is living. If your spouse chooses to wait outside the US
and apply for an immigrant visa through the Consulate, it is unlikely that
he or she will be able to enter the US, even for a visit, during the time
your adjustment is pending with the USCIS. In addition, depending on Consulate
processing times, it may be several months after your adjustment is approved
before your spouse's immigrant visa is approved and your spouse is allowed
to join you in the US.
If you are not currently married, you should be aware that if you do not
marry until after your adjustment of status application is approved, your
spouse cannot become a legal permanent resident with you. Instead, you will
have to file a separate petition for him or her and it may be several years
before he or she can join you in the US. (See Visa Bulletin - Family Based
Preference Category 2A)
If you are not currently married, but you are planning to marry soon, in
some cases it may be wise to wait until after your marriage to file your
adjustment of status application. If your spouse is in the US, or comes
to the US before you file your adjustment application, then you can include
him or her in the application. If you file the adjustment application after
your marriage, but before your spouse comes to the US, he or she most likely
will have to wait outside the US until your adjustment is approved, then
file an application for an immigrant visa with the US Consulate.
If you marry while your adjustment of status application is pending with
USCIS, but before USCIS approves it, you can "add" your spouse to the application.
Again, however, if your spouse is not in the US, he or she will have to
wait outside the US until your application is approved, and then apply for
an immigrant visa at the US Consulate where he or she is living.
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