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Adjustment of Status Help in San Jose, CA

Status During Pending Employment-Based Adjustment of Status (I-485) Application

Adjustment of status is a term that specifically refers to a process whereby an alien changes his/her non-immigrant status to immigrant (permanent) status while continuing to reside in the United States. The filing of I-485 Application to Register Permanent Residence or Adjust Status is typically the last step in the green card process. While the I-485 application is pending, an alien can enjoy several benefits such as entering the U.S. under Advance Parole (AP) and permission to work in the U.S. using Employment Authorization Document (EAD). For employment-based I-485 (i.e. EB-1B (Outstanding Researcher or Professor), EB-2 (except under National Interest Waiver), and EB-3), an alien may also change jobs after the I-485 has been pending for 180 days or more, provided that the duties of the new job are within the “same or similar” occupational classification as the job for which the I-140 petition was filed ("Portability Rule"). This article will discuss how AP, EAD, and Portability Rule might affect an alien in H-1B or L-1 status.

  • 1. Advance Parole (AP)

Typically, an adjustment of status application is considered abandoned if an alien leaves U.S. while the application is pending. To avoid termination of a pending I-485 application, an alien must apply for,and be approved for, Advance Parole (AP) prior to leaving the U.S. AP (Form I-512) is a document issued to aliens with pending I-485, which allows them to re-enter the U.S. without the need of a valid non-immigrant visa. However, in the case of an H-1B or L-1 holder, the travel outside the U.S. is not deemed an abandonment of the I-485 application if, upon returning to the U.S., the alien resumes employment with his/her H-1B sponsoring employer and is in possession of a valid H-1B or L-1 visa.

If an alien holding H-1B or L-1 visa wishes to travel outside the U.S. during the I-485 pending period, s/he may be admitted in the U.S. in one of two following ways:

  • a. The alien may apply for an H-1B or L-1 visa from his/her home country or a third country and use it to re-enter the U.S. without having the I-485 application affected. However, there is always the risk that the visa application may be denied at the consulate. We therefore recommend that the alien have an approved AP prior to leaving the U.S. to safeguard his/her return.

  • b. If an alien is approved for AP prior to leaving the U.S. and re-enters the U.S. on AP rather than an H-1B visa, s/he is considered to be in parolee status. The alien can resume working for his/her H-1B or L-1 sponsoring employer while in parolee status. Before the alien’s H-1B or L-1 status expires, his or her employer can file an H-1B or L-1 extension petition for the alien. If the petition is approved, the parolee status is terminated and the alien is considered to be admitted in the relevant nonimmigrant classification.

It should be noted that in the second scenario, if upon returning to U.S. the alien leaves the H-1B/L-1 employer, then the alien will no longer have valid H-1B or L-1 status, although s/he may lawfully stay in the U.S. during the I-485 pending period. If the I-485 application is denied, the alien may not be able to lawfully stay in the U.S. as a non-immigrant.

  • 2. Employment Authorization Document (EAD)

The EAD is issued by USCIS to certain groups of non-immigrant including aliens with pending I-485 and F-1 students working pursuant to Optional Practical Training. Aliens with EAD are eligible to work in the U.S. For purpose of this discussion, the initial EAD application (Form I-765) can be filed concurrently with the I-485 or at any time while the I-485 is pending.

An alien possessing a valid EAD can work for any U.S. employer. In the context of employment-based green card, however, the primary beneficiary must have a qualifying job offer at the time the I-485 is adjudicated. A qualifying job offer means, amongst other things, that the offer is bona fide and belongs to “same or similar” occupational classification as the position described in the I-140 and Labor Certification. See H-1B Portability and AC21. These restrictions, however, do not apply to dependents of the beneficiary alien.

The mere possession of a valid EAD does not change an alien’s non-immigrant status. If an alien in H-1B or L-1 status uses the EAD to work for the current employer or takes on another job, then the H-1B or L-1 status is considered to be lost. In this situation, the alien must obtain approved AP prior to traveling abroad so that s/he may return to U.S. as a parolee. It is not advisable that aliens rely on EAD since if the I-485 is denied, the alien may not be lawfully present in the U.S. as a non-immigrant. On the other hand, if the alien maintains H-1B or L-1 status, then s/he may legally stay and work in the U.S. even if the I-485 is denied.

  • 3. Portability Rule

Those aliens who are beneficiaries of an approved I-140 and current priority date can take advantage of the Portability Rule of AC21, whereby they can change employers if (1) his or her I-485 has been pending for at least 180 days, and (2) the new job is within the “same or similar” occupational classification as the job stated on the approved I-140 and Labor Certification. See H-1B Portability and AC21 for a detailed discussion of the AC21 Portability Rule.

CONCLUSION

Despite the many ancillary benefits brought by the filing of I-485, aliens should be cautious when making travel arrangements as well as in regard to their work permits (EAD) in the U.S. With regard to travel, it is strongly recommended that the alien obtain approved AP prior to leaving the U.S., even if s/he intends to continue to work in the U.S. in other non-immigrant status. With regard to changing employment, it is advisable that the alien maintain valid non-immigrant status such as H-1B or L-1 and not rely on EAD to avoid being unlawfully present in the event that the I-485 is denied. Finally, if an alien wishes to change jobs utilizing AC21, s/he must carefully count the days (180 days after the “Receipt Date” on the I-485 Receipt Notice) and make sure that the new job is in the same or similar occupational classification as the job stated in the approved I-140 and Labor Certification.

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