H1 and L1 Travel with Adjustment of Status Pending

 

Introduction: H1 and L1 Travel with Adjustment of Status Pending

h1 and l1 travel with adjustment of status pendingMost adjustment of status applicants are required to obtain a grant of advance parole prior to departing the United States in order for the adjustment of status application to not be abandoned. However, in recognition of the fact that both the H-1 (H1) and L1 (L1A and L1B) nonimmigrant visa categories recognize dual intent, in that it is permissible to apply for adjustment of status and remain in the United States on lawful H or L status, the rules regarding travel and H1 and L1 status are unique.1 Furthermore, the same provisions are extended to derivative H4 and L2 family members (provided that the principal meets all of the requirements). In this article, we will use regulations and an important Immigration and Naturalization Service (INS)2 Memorandum from May 16, 2000,3 to explore the relevant rules for H1 and L1 visa-holders.

When Advance Parole is Not Necessary

According to regulations, the departure of an alien with a pending adjustment of status application without receiving advance parole will constitute the abandonment of the adjustment of status application.4 However, the regulations set forth special rules for H1 and L1 visa-holders with pending adjustment of status applications.

The regulations provide the following requirements for when an H1 or L1 visa holder may travel from the United States without obtaining a grant of advance parole, and be readmitted to the United States in H1 or L1 status without his or her adjustment of status application being abandoned:

  • Not be under exclusion, deportation, or removal proceedings;
  • Be in lawful H1 or L1 status;
  • Remain eligible for H1 or L1 status upon return;
  • Be returning to resume employment with the same employer for which he or she has been authorized to work for as an H1 or L1 nonimmigrant;
  • Be in possession of a valid H1 or L1 visa (if required).

Furthermore, the regulations exchange similar privileges to H4 and L2 derivative family members who have pending adjustment of status applications. In this case, the principal H1 or L1 must be in lawful status, and the derivative H4 or L2 must be maintaining lawful status, be otherwise eligible for H4 or L2 status, and have a valid H4 or L2 visa upon return to the United States (if required).5 The H4 or L2 visa-holder may not be in exclusion, deportation, or removal proceedings.

Although it is not the subject of this particular article, it is worth noting that K-3 (K3) and K-4 (K4) visa-holders are also mentioned in the same regulation as a class of nonimmigrant aliens which may travel with pending adjustment of status applications without obtaining a grant of advance parole.6

As of 2007, H1, H4, L1, and L2 visa-holders returning in such a manner are no longer required to be in possession of an adjustment of status receipt.7

The INS Memorandum (Cronin Memo) explains that if an H1 or L1 visa-holder returns with both a valid H1 or L1 visa and a Form I-512 (advance parole document), officials at the point of reentry should inform the alien that he or she is eligible to be readmitted in H1 or L1 status. Even if the alien obtained the advance parole document, he or she may still be readmitted in H1 or L1 status instead of as a parolee. However, if the alien is for whatever reason no longer eligible to be admitted as an H1 or L1, he or she may be allowed entry as a parolee.

Rules for Returning on Advance Parole

The Cronin Memo explains that an H1 or L1 visa-holder who returns to the United States as a parolee after having obtained a grant of advance parole may still be eligible to apply for an extension of status (this includes extensions of H1B status beyond the six-year statutory limit). In order to be eligible, the H1 or L1 must be in possession a valid H1 or L1 visa. If the extension of status is approved, the alien's parole will be terminated and he or she will be admitted in the relevant nonimmigrant classification.

The Cronin Memo also explains that if an H1 or L1 returns as a parolee after being granted advance parole, and his or her employment authorization would not have expired, he or she will be eligible to continue working for the same employer without being considered to have engaged in unauthorized employment. However, the employer may also either apply for a new H1 or L1 visa for the employee or the H1B or L1 visa-holder may depart and seek to reenter the United States with a valid H1 or L1 visa.

Conclusion: H1 and L1 Travel with Adjustment of Status Pending

The regulations and agency guidance grant H1B, L1A, and L1B visa-holders ample flexibility to take short trips abroad with adjustment of status pending. There are many situations in which obtaining parole is unnecessary, and it is generally not difficult to either resume work upon returning as a parolee or to reclaim H1B, L1A, or L1B status. However, in the event that an H1B, L1A, or L1B visa-holder has any questions or concerns about traveling abroad, he or she should schedule a consultation with an experienced immigration attorney for guidance and to have any questions answered.

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  1. INA § 214(h)
  2. INS was replaced by the USCIS, CBP, and ICE in 2003.
  3. Memo, Cronin, Acting Assoc. Comm., Office of Programs HQADJ 70/2.8.6, 2.8.12, 10.18 (May 16, 2000), Published on AILA InfoNet Doc. No. 00052603
  4. 8 C.F.R. § 245.2(a)(2)(C)(4)(ii)(A)
  5. 8 C.F.R. § 245.2(a)(2)(C)(4)(ii)(C)
  6. In the case of a K3 or K4 visa-holder, the applicant must not be under exclusion, deportation, or removal proceedings; be in lawful K3 or K4 status; be in possession of a valid K3 or K4 visa upon return to the United States; and remain otherwise eligible for K3 or K4 status. This also applies to persons maintaining valid V status [8 C.F.R. § 245.2(a)(4)(ii)(D)]
  7. 72 FR 61791 (Nov. 1, 2007)

Resources and Materials:

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: AILA Publications, 2014. 949-50, 1008, 1163-64, Print. Treatises & Primers.